Opinion
A149157
05-24-2018
THE PEOPLE, Plaintiff and Respondent, v. LORENZO ANTONIO ESCALERA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR301156)
Defendant Lorenzo Escalera was convicted of three counts of oral copulation with a child under 10 years old, two counts of attempted oral copulation with a child under 10 years old, and one count of committing a lewd act on a child. On appeal, defendant asserts seven errors, the first of which is that the trial court committed reversible error when it refused to reopen jury selection to allow him to exercise one of his remaining peremptory challenges to dismiss Juror No. 5, who disclosed new information about herself after jury selection concluded but before the jury had been sworn. We agree this was error. We thus reverse defendant's conviction and remand the matter for a new trial, without the need to address defendant's remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issue on which we reverse pertains to jury selection, the salient facts regarding defendant's offenses are few. It suffices to say that defendant was charged with sexually abusing two young children, who were seven and eight years old at the time the charges were brought against him.
Jury selection began on May 25, 2016. Juror No. 5 was in the original panel assigned to defendant's trial. Throughout the selection process, the court asked various questions that bear upon the issue before us. For example, the court repeatedly asked the jurors if they themselves or close friends or family members had been victims of or accused of crimes similar to the sexual assault allegations against defendant. The court told the jury that if they were thinking there was something they should tell the court, they should do it now, rather than later. The prospective jurors were also asked, after Juror No. 5 had been seated in the jury box, "Can any of you think of a reason you could not be fair and impartial to everyone involved?" No one responded affirmatively.
Questioning of the individual prospective jurors proceeded unremarkably, with counsel asking general background questions of the prospective jurors, as well as questions directed specifically at uncovering any personal experiences involving sexual abuse, children, and other topics that might have suggested a potential bias given the nature of the charges against defendant. After Juror No. 5 assumed a seat in the jury box, she answered the general background questions, relating that she did not have children, was a pharmacy technician, and was on active duty with the United States Air Force. Defense counsel subsequently asked her: "Is there anything about what I discussed earlier . . . about any of the issues with regards to the children's testimony and evaluating their testimony and keeping an open mind until you heard all the evidence? You are going to have a problem with that when the children walk in front of you?" Juror No. 5 responded: "No, ma'am." At no point did she disclose anything about working with neglected children or victims of sexual abuse.
Jury selection ended on May 26 with both the prosecution and defense counsel passing, thereby indicating their satisfaction with the jury. At that time, defendant had peremptory challenges remaining. The court could not swear the jury that day, however, because one of the jurors was not present. The court thus indicated it would swear the jury the following Wednesday, June 1, and the parties proceeded to select two alternate jurors, who were sworn that day.
On June 1, before the jury was sworn, the bailiff informed the court that Juror No. 5 had indicated she wanted to speak with the court about a "conflict of interest." Juror No. 5 was brought into the courtroom, where she revealed for the first time that she was a volunteer court-appointed special advocate (CASA) for the Solano County Superior Court and was currently advocating on behalf of seven- and eight-year-old siblings in a juvenile dependency case involving neglect. She had been representing them for one and one-half years and had appeared in court but had not testified. Additionally, she had recently been certified as a sexual assault victims advocate for adults on a military base. This involved responding to calls on a sexual assault hotline, advising victims of the available resources, and guiding them through the process. She had completed 40 hours of training but had not yet started the volunteer work.
The court asked Juror No. 5 if anything about her CASA training would affect her ability to be fair and impartial to everyone involved in the case. She responded, "No." She also said there was no particular experience in her background that drew her to serving as a CASA or a sexual assault victims advocate; rather, she just wanted to give back to her community. She agreed not to bring her special training and education into the case.
The court then held a bench conference with counsel, at which this exchange occurred:
We have taken the liberty of correcting typographical errors in the reporter's transcript.
"THE COURT: . . . Deputy Bennett made me aware [Juror No. 5] shared information with him about, like, nobody asked me this particular question, but she felt maybe I think that could be a conflict of interest, and I think sometimes people think if they work in the court capacity somewhere there's a conflict of interest. She didn't have a conflict of interest.
"This is a weird one because obviously I asked whether there was legal cause why I couldn't swear them in but I did not swear them in, and we went ahead and excused the jury panel. I recognize both sides did not exercise all the peremptories, and a piece of information came out late. I have not technically sworn the jury in at this point.
"MS. COLLINS [counsel for defendant]: Right.
"THE COURT: And both of you said pass and both of you on the record said there was no legal cause why I could not impanel them when we come in here today, so it would be my intent to swear them. I don't think there is a cause basis now. She cleared that up. And she indicated she can be fair to everyone.
"MS. COLLINS: I do understand. Obviously, the Court can see my concern. Because I would not have kept her had that information come out last week. I would ask the Court to excuse her.
"THE COURT: I have to excuse her for finding she intentionally omitted an answer to a question, and I don't think I can make that finding here. I don't know if anybody ever asked her about her volunteer capacities, and I think she was later on in the examination when people were tired and had the questions asked 25 different times and all the eyes are glazing over.
"Is it something she should have volunteered? Yeah, I think it is something she could have volunteered. Is it material such that I have to remove her because she withheld that information, I don't think I can make that finding based on this record.
"So I would be prepared to go ahead and swear the jury in. [¶] . . . [¶]
"Okay. Understanding this is our first appellate issue, potentially, the next remedy would be to seat an alternate and swear in that jury. And the People, you are not excusing juror number 5 then; is that right?
"MS. JACOBS [the prosecutor]: Correct."
The court then swore the jury, including Juror No. 5.
Defendant was found guilty on all six counts. He was sentenced to an indeterminate term of 45 years to life and a consecutive determinate term of 13 years, four months.
DISCUSSION
Defendant contends the trial court's failure to reopen jury selection so he could exercise a peremptory challenge to excuse Juror No. 5 was an abuse of discretion that denied him a fair trial. We agree.
During the process of selecting a jury, "Peremptory challenges shall be taken or passed by the sides alternately, commencing with the plaintiff or people . . . ." (Code Civ. Proc., § 231, subd. (d).) When each side passes consecutively, the court shall swear the jury, unless, for good cause, it orders otherwise. (Ibid.) Once both sides have passed and accepted the jury, any remaining peremptory challenges may be exercised only at the discretion of the trial court, based upon a showing of good cause to reopen jury selection. (People v. Niles (1991) 233 Cal.App.3d 315, 319-320 (Niles).) Once the jury is sworn, a party may no longer exercise a peremptory challenge (Code Civ. Proc., § 226, subd. (a)), and a juror may only be excused for cause based on a finding by the trial court that the juror is incapable of performing his or her duty. (Id., § 233.)
Code of Civil Procedure rules regarding jury selection apply to both civil and criminal cases. (Code Civ. Proc., § 192.)
The phrase "the jury is sworn" refers to the trial jury, not the alternates. (People v. Cottle (2006) 39 Cal.4th 246, 255.) --------
The trial court's discretion to find good cause to reopen jury selection "will not be set aside absent a clear showing of abuse." (Niles, supra, 233 Cal.App.3d at p. 321.) Defendant has made a clear showing of abuse here, as the circumstances unquestionably demonstrated the requisite good cause.
The allegations against defendant involved the sexual abuse of two young children, ages seven and eight at the time the charges were filed against defendant. Juror No. 5 belatedly disclosed that she volunteered as a CASA and at the time of defendant's trial was advocating on behalf of two young siblings, ages seven and eight, in a dependency case. She had also recently been certified as a sexual assault victims advocate. After learning this information, defense counsel expressed concern about Juror No. 5's revelations and informed the court that had she disclosed this information during jury selection, counsel would have excused her. The court agreed it was information the juror should have volunteered. Despite all this, the court did not reopen jury selection to allow defendant to exercise one of his remaining peremptory challenges to excuse Juror No. 5, nor did it replace the juror with one of the alternates who had already been sworn. The result was that defendant was forced to proceed to trial on child molestation charges with a juror who had personal experience with neglected children and victims of sexual assault, experience that suggested a possible bias against defendant, who stood accused of sexually abusing two children. It was an abuse of discretion to deny defendant's request in light of these facts.
Niles, supra, 233 Cal.App.3d 315, discussed at length by defendant but merely cited for a generic proposition by the People, is instructive. Although the Court of Appeal there affirmed the trial court's discretionary denial of defendant's request to reopen jury selection—the opposite result of that we reach here—the case demonstrates both the operation of the applicable rules and why a different outcome must result in this case.
In Niles, supra, 233 Cal.App.3d 315, defendant and his co-defendant were charged with the murder of defendant's wife. Defendant's jury was selected first but its swearing-in was postponed until after the co-defendant's jury had also been selected. Months later, during a hearing to finalize jury selection—and before the jury was sworn—the trial court relayed to counsel information it had received from the husband of one of defendant's jurors. The husband, who was a sheriff's sergeant in the county jail, had reported that when he was at work, defendant was being very nice to him and had told him that his wife had been selected for the jury, information that had not yet been provided to the jurors themselves. The court permitted both counsel to question the wife to determine whether she should be excused. At the conclusion of the questioning, both sides agreed she should be left on the jury, although defense counsel was granted permission to ask her additional questions the following day. The next day, without having asked any additional questions of the juror, defense counsel requested that defendant be permitted to use his one remaining peremptory challenge to excuse the juror. The trial court denied the request, noting it saw no reason to reopen jury selection. (Id. at pp. 318-319.)
On appeal, defendant contended he had an absolute right to exercise his remaining peremptory challenge to excuse the juror because the jury had not yet been sworn. (Niles, supra, 233 Cal.App.3d at p. 319.) The Court of Appeal disagreed. As the court explained, "[W]hen both sides consecutively pass on peremptory challenges, they indicate to the trial court that they are each satisfied with the composition of the jury and that the jury may be sworn. At that point, and even though the jury is not actually sworn, any remaining peremptory challenges may be exercised only at the discretion of the trial court, based upon a showing of good cause." (Id. at p. 320.) Application of that law did not favor defendant there:
"We cannot say, based upon our review of the facts, that the trial court clearly abused its discretion in denying defendant's request to reopen. Each of the pertinent facts regarding [the juror], including her husband's employment and assignment at the county jail where defendant was confined and thus might possibly come in contact with [the sergeant], were known to defendant at the time defendant originally passed on peremptory challenges and accepted [the juror] as a member of the jury. Further, defendant did not offer any facts additional to those presented the preceding day when defendant agreed, after questioning [the juror], that she should remain on the jury. In our view, defendant showed nothing more than that he had reconsidered his decision of the day before and had changed his mind." (Niles, supra, 233 Cal.App.3d. at p. 321, fn. omitted.)
Niles confirms the principle that governs here: when both sides consecutively pass on peremptory challenges but the jury has not yet been sworn, "any remaining peremptory challenges may be exercised only at the discretion of the trial court, based upon a showing of good cause." (Niles, supra, 233 Cal.App.3d at p. 320.) And the Niles court specifically clarified that it is good cause to reopen jury selection, not good cause to challenge the juror. (Id. at p. 320, fn. 4.)
Additionally, critical to the result in Niles was the fact that defendant's request to reopen jury selection was based on information known to counsel during the original voir dire of the jury. (Niles, supra, 233 Cal.App.3d at p. 321.) In contrast, in this case, the information giving rise to defendant's desire to reopen jury selection came to light after jury selection had concluded, a significant distinction that compels a different result than that reached in Niles.
The trial court's error here was evidently grounded in its mistaken belief that defense counsel had to show good cause for Juror No. 5's removal. This was demonstrated by multiple statements it made during its exchange with counsel: "I don't think there is a cause basis now"; "I have to excuse her for finding she intentionally omitted an answer to a question, and I don't think I can make that finding here"; "Is [her concealment] material such that I have to remove her because she withheld that information, I don't think I can make that finding based on this record." The trial court would have been correct had it already sworn the jury. (People v. Cottle, supra, 39 Cal.4th at p. 255 [after jury is sworn, juror can only be discharged if there is good cause for removal]; Code Civ. Proc., §§ 233, 234.) But it had not, and we are hard pressed to see how the court could have denied defendant's request had it applied the correct standard.
The People perpetuate the trial court's error here, treating the situation as if it arose after the jury had already been sworn such that it was incumbent upon defendant to show that Juror No. 5 was unable to perform her duty and thus good cause existed for her removal. The error is exemplified by their reliance on People v. Wilson (2008) 44 Cal.4th 758 (Wilson), which involved the removal of a juror during the penalty phase of a capital murder trial of an African-American man. Juror No. 5 was the only African-American on the jury and was the lone hold out for a life sentence. After another juror complained about Juror No. 5, a lengthy investigation ensued, ultimately resulting in the removal of the juror in part because " 'he failed to disclose his biases, including race-based biases on voir dire . . . ." (Id. at pp. 813-814, 820.)
The California Supreme Court agreed with defendant that the trial court erred in removing the juror. (Wilson, supra, 44 Cal.4th at pp. 823-825.) In reaching this result, the court discussed the law applicable to a juror's concealment of relevant facts during voir dire, describing that law as follows: " '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." ' " (Id. at p. 823.) There was, according to the Supreme Court, no suggestion in the record that the juror intentionally concealed any information, nor was there good cause to believe the juror was unable to perform his duty if he had unintentionally concealed any relevant information. (Id. at pp. 823-824.)
The People quote the standard articulated in Wilson—that the test applicable to an unintentional concealment by a juror " ' "is whether the juror is sufficiently biased to constitute good cause" ' " (Wilson, supra, 44 Cal.4th at p. 823)—and then submit good cause for Juror No. 5's removal was lacking here because she "did not have a conflict of interest and could be fair to everyone," and "there was nothing in her background or experience that drew her to the sexual assault crisis volunteer position, and there was nothing about her specialized training that would affect her ability to be fair and impartial to everyone involved in this case." But Wilson involved the removal of a juror after the jury has been sworn, when the standard is good cause for removal. As Niles instructs, the standard for removing a juror before the jury has been sworn is different, and merely requires good cause for reopening jury selection. Given this distinction, Wilson has no applicability here, and it was not incumbent on defendant to demonstrate good cause for Juror No. 5's removal.
In sum, we conclude the trial court abused its discretion in failing to reopen jury selection in light of Juror No. 5's belated disclosures. Neither defendant nor the People discuss the consequence of this conclusion, that is, whether this was a structural error requiring reversal or whether it was error requiring the application of a harmless error analysis. Defendant merely asserts in one sentence in his reply brief that he was prejudiced by the court's denial, while the People offer no prejudice argument whatsoever. In any event, the nature of the error precludes harmless error analysis, as we would be forced to engage in rank speculation regarding the effect Juror No. 5 had on the jury, its deliberations, and its ultimate verdict. (See, e.g., People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1034 [" 'In the context of an appeal based on denial of a peremptory challenge, there is inadequate evidence for an appellate court to determine the degree of harm resulting from the seating of a juror [or failure to sit a juror] despite a defendant's attempted peremptory strike.' "].) Accordingly, reversal is obligatory.
DISPOSITION
The judgment of conviction is reversed and the matter remanded for a new trial.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.