Filed 10/23/14 P. v. Velasquez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063570
Plaintiff and Respondent,
v. (Super. Ct. No. SCN297958)
LUCIANO VELASQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Runston
G. Maino, Judge. Reversed and remanded.
Nancy J. King, under appointment of the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Paige B.
Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
In this attempted murder case in which the identity of the shooter was the critical
factual issue at trial, the jury─after the court twice denied a defense motion to remove
juror No. 9 from the panel and after the jury sent the court a note asking how long it
needed to deliberate before it became a hung jury─found Luciano Velasquez guilty of
three counts of attempted murder (Pen. Code,1 §§ 664, 187, subd. (a)). As to all three
counts, the jury found Velasquez personally used a firearm (§ 12022.5, subdivision (a));
he committed the offenses for the benefit of, or at the direction of, or in association with a
criminal street gang (§ 186.22, subd. (b)(1)); he personally inflicted great bodily injury
upon each of the three victims─Alejandra Moreno, her brother David Moreno,2 and Eric
G. (Eric)─within the meaning of section 12022.7, subdivision (a)); and he intentionally
and personally discharged a firearm which caused great bodily injury (§12022.53, subd.
(d)). Velasquez admitted, and the court found true, allegations he had suffered two prior
prison terms (§§ 667.5, subd. (b), 668). The court sentenced him to an aggregate prison
term of 75 years to life plus 30 years four months.
Velasquez appeals, contending (1) the court violated his constitutional right to an
unbiased jury by denying his motion to excuse juror No. 9, who informed the court after
she was sworn in that she was personally acquainted with two of the three victims─her
former students Alejandra and Eric─who testified on behalf of the prosecution; and (2)
the court improperly sustained numerous evidentiary objections by the prosecution during
defense cross-examination of witnesses, thereby depriving him of his constitutional rights
to confrontation and due process.
1 Statutory references are to the Penal Code unless otherwise specified.
2 As Alejandra Moreno and David Moreno share the same last name, we shall refer
to them by the first names. We intend no disrespect.
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For reasons we shall explain, we conclude the judgment must be reversed and the
matter remanded for further proceedings because juror No. 9's failure to disclose her
relationship with Alejandra and Eric during voir dire, even if unintentional, was an
irregularity that undermined the voir dire process, Velasquez's right to reasonably
exercise a peremptory challenge, and thus his Sixth Amendment right to an impartial
jury. The court committed reversible error by refusing to discharge juror No. 9 and
replace her with one of the alternate jurors. Accordingly, we reverse the judgment and
remand the case for further proceedings.
FACTUAL BACKGROUND
A. The People's Case
1. The shooting incident
On October 10, 2011, at around 8:00 p.m., Alejandra, her brother, David, and
Alejandra's then-16-year-old boyfriend, Eric, were at Alejandra and David's home in
Carlsbad when Alejandra and David decided to take a walk with Eric and their two dogs.
David planned to walk and Alejandra and Eric would ride bikes. Eric left the house first
and walked across the street with his bike and one of the dogs. Shortly thereafter, David
walked through the front yard gate and Alejandra followed him to the driveway pushing
her bike. Although it was dark outside, it was not pitch black because there was a
streetlight across the street and another one closer to a nearby preschool.
A sedan turned onto the street and approached slowly. The car, a dark blue four-
door Dodge Stratus, pulled up and stopped. Eric saw five people in the car: the driver
and the front passenger were females and the three passengers sitting in the back were
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males. The passenger in the rear driver's side seat rolled down the window, reached out
through the window, and opened the door from the outside. The interior light went on
when the door opened. The male exited the car and walked around the back of the car.
Eric testified he saw him stuff something in his pocket or the waistband of his pants. The
male approached Alejandra and David, who were still on the driveway. Eric was still
across the street. The male asked Alejandra and David where they were from, and
Alejandra, who had not been involved in gangs, was confused about the question. She
pointed at her house and said that was where she was from. David, who understood that
the male was asking which gang they were affiliated with, replied he was from nowhere.
Eric crossed the street on his bike to see what was going on, and the male
appeared startled when Eric approached him. Eric was concerned because the male had a
bandanna covering the lower part of his face, including his mouth. The male stepped
back and asked Eric, "Where the fuck you from?" Eric told him, "I don't bang," meaning
he did not belong to a gang.
After twice asking Eric what he had in his pockets, the male from the car reached
into his waistband and pulled out a gun. Eric testified that the male fired a total of seven
rounds from a revolver. Eric was shot twice in the leg and once in the stomach. The
shooter then turned toward Alejandra and David and fired shots at them. Alejandra and
David were each hit in the leg. Eric was able to run to Alejandra, pick her up, and carry
her inside the house. David was able to run inside on his own. The shooter ran back to
the car and jumped in, and the car drove away.
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2. The investigation and conflicting evidence of the shooter's identity
As part of the investigation, police spoke with neighbors and searched for
evidence at the scene of the shooting. They found no bullets, no shell casings, no tire
marks, and only droplets of blood.
Using the description of the vehicle provided by Eric, Detective Bryan Hargett of
the Carlsbad Police Department located a matching Dodge Stratus in Oceanside. A few
weeks of surveillance of the car showed that no one used the rear driver's side door. A
young child was observed climbing over the driver's seat to get to the driver's side back
seat.
The police executed a search warrant to seize and search the Stratus. The child
protection lock on the car was activated so that the driver's side back door could not be
opened from the inside. A passenger could open the door by rolling down the window
and reaching outside to lift the outside door handle. The daughter of the registered owner
of the car was dating a member of the Mesa gang. A friend of the owner's daughter was
dating Velasquez. No fingerprints or other evidence associated with Velasquez were
found in the car.
At trial Eric testified the shooter wore a long-sleeved flannel-type shirt, long pants,
a bandanna around his neck and mouth, and a hat, and he had a "filled in" tattoo under his
right eye. Eric stated he told the police the tattoo "could possibly be a big teardrop or
anything that is filled in." He also told the police that the shooter did not have any facial
hair and that he was certain the shooter did not have a mustache. Eric identified
Velasquez in court as the shooter. He also stated he had identified Velasquez in a photo
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lineup and had stated at the time that he was "75 percent sure," but that he was "not sure
on tattoos." Detective Hargett indicated at trial that Eric's statement that he was 75
percent sure of his identification was sufficient to support an arrest of Velasquez because
the probable cause standard is "more likely than not."
Alejandra's testimony regarding the description of the shooter was not consistent
with Eric's. She testified the shooter wore a short-sleeved blue shirt and shorts that only
reached his knees, he had a bandanna around his neck that was below his chin and did not
cover up any of his facial features, and he was not wearing a cap or anything else on his
head. She further testified the shooter had a mustache, "huge" eyes, and "dark things
around his eyes." At the time of the shooting she thought those markings probably were
tattoos. She did not see any tattoos on the shooter's hands or fingers. Alejandra
identified Velasquez in court as the shooter. Indicating she had also identified Velasquez
in a photo lineup, Alejandra testified that she "tried to match the eyes, and when [she]
looked at him, it was inevitable."
David testified he could not identify the shooter with certainty. He testified he
was 10 or 15 feet from the shooter at the time of the incident. The shooter wore a dark
long-sleeved shirt and a handkerchief around his neck that went up to the top of his
collar, and he had a little mustache. Stating he did not remember looking at the shooter's
pants, David testified the shooter had a tattoo under his right eye. David indicated he had
not been able to identify Velasquez from a photo lineup. Specifically, he testified, "I
identified somebody; I did not say that that was specifically the person." David then
testified, "I believe my exact words were "this pretty much looks like the person who shot
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me, but I don't know if that's exactly him or not." Detective Steven Seapker of the
Carlsbad Police Department testified that when he showed David the photo lineup, David
did not identify anybody as the shooter.
The prosecution presented evidence that Velasquez was known to Oceanside
police as a Mesa gang member, and Velasquez had two tattoos under his eyes: the
number "1" under his right eye and a "3" under his left eye. When asked what those
tattoos meant, Detective Hargett opined that "1" and "3" is "13," the letter "M" is the 13th
letter of the alphabet, and the "1" and "3" could stand for "Mesa." He also testified that
having a "13" tattoo could also show an allegiance with the Mexican Mafia, the largest
Hispanic prison gang in Southern California that "controls all the street level gangs from
the prison." Detective Hargett also testified that Velasquez had "Mesa" tattooed across
the back of his head, "Mesa Margarita" across his lower abdomen, "Sur" across his right
hand, and three dots representing "mi vida loca" ("my crazy life") symbolizing he had
lived a crazy gang life.
Detective Hargett testified he did not know any Carlsbad gang members with
similar large eye tattoos, no other Mesa gang member "remotely resemble[d]" Velasquez
in appearance or displayed similar tattoos. He also testified a blue bandanna was found
in a vehicle in front of a residence where, according to information he had received,
Velasquez lived. Detective Hargett opined that the motive for the shooting might have
been retaliation for a beating at Carlsbad High School of a Mesa member by Carlsbad
rivals. In the days leading up to the shooting, Velasquez was in custody, including during
the time that the Mesa member was beaten by Carlsbad gang members. The shooting
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happened on October 10, 2011, and Velasquez was released on October 5, five days
before the shooting.
B. The Defense
A prosecution gang expert testified on cross-examination that Velasquez had never
been arrested for a violent crime prior to the shooting in this case.
An ophthalmologist who had examined records of eye examinations performed on
Velasquez in 2009 and 2010, prior to the 2011 shooting, testified that Velasquez was very
nearsighted in each eye and could not see or function very well without "fairly thick"
glasses. The doctor opined that Velasquez would not be able to shoot someone standing
six to eight feet away. Although Velasquez would be able to see the person's form, the
image would be blurred and he might not be able to recognize the person's face.
A private investigator testified that Velasquez was under the control of Mexican
Mafia "shot caller[s]" when he was in and out of prison. The investigator opined that it
was "absurd" that a gang member associated with the Mexican Mafia would involve
himself with retaliation for a high school incident.
The defense also called Detective Hargett, who testified that only Velasquez was
charged for the shooting, but the investigation remained ongoing as the police searched to
identify the other individuals in the car that night.
DISCUSSION
I. FAILURE TO DISCHARGE JUROR NO. 9
Challenging his conviction of three counts of attempted murder that arose out of
the shootings of Alejandra, Eric, and David, Velasquez contends the court violated his
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constitutional right to an unbiased jury by denying his motion to discharge juror No. 9,
who informed the court after she was sworn in that she was personally acquainted with
two of the three victims─Alejandra and Eric─who testified on behalf of the prosecution.
For reasons we shall explain, we conclude the judgment must be reversed and the matter
remanded for further proceedings because (1) juror No. 9's failure to disclose her
relationship with Alejandra and Eric during voir dire─whether intentional or
inadvertent─was an irregularity that undermined the voir dire process, Velasquez's right
to reasonably exercise a peremptory challenge, and his Sixth Amendment right to an
impartial jury; and (2) the court committed reversible error by twice denying the defense
motion to discharge juror No. 9 and replace her with one of the alternate jurors.
A. Background
At the beginning of voir dire, the court informed the prospective jurors that the
three alleged victims in this case were "Eric G.[, who] is a minor"; "David Moreno"; and
"Alejandra Moreno," who was "also known as Alex Moreno." The court told the
prospective jurors that the prosecutor was going to tell them who his witnesses might be.
The court then told the prospective jurors, "The purpose of this is to see if you know
anybody."
The prosecutor then read aloud the names of witnesses who might testify at the
trial, including "Eric G., who is the minor that the Court spoke about";
"Alejandra . . . Moreno", who was "[a]lso known as Alex"; and "[h]er brother, David
Moreno."
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The court then asked the prospective jurors, "Does anybody know either the
prosecuting attorney or any of the names that he mentioned?" Prospective juror No. 30
knew one of the potential witnesses. The court then asked, "Anyone else?" When none
of the other prospective jurors, including prospective juror No. 9, responded to the court's
question, the court stated, "I don't see anybody else."
Prospective juror No. 9 thereafter stated she was a middle school teacher who had
served as a juror in three criminal cases. She also stated she had been the victim of a
crime 15 or 16 years earlier. She did not indicate that she knew Alejandra Moreno or
Eric G., and she told the court she believed she could be impartial.
Twelve jurors, including juror No. 9, and two alternates were thereafter sworn in
and seated.
Trial began, the prosecutor gave an opening statement, and during the next break
juror No. 9 sent a note to the court stating she might know Alejandra. The court
immediately conducted a hearing outside the presence of the other jurors. When the
court showed juror No. 9 a photograph of Alejandra, juror No. 9 stated, "I think she's a
former student [from] about five, six, seven years ago." The court explained that
knowing a witness did not automatically preclude service as a juror, but the "issue would
be if your relationship with her was such that it might influence the way you look at her
testimony." When the court asked juror No. 9 how she felt about Alejandra, the
following exchange took place between juror No. 9 and the court:
"[JUROR NO. 9]: I loved her. She was awesome. I knew her for
actually several years because she was an avid student of mine. It
was more than one year. It wasn't like she was in my class just once.
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[¶] She has come back to visit me in the past to say hi, like, 'Hi,
[Juror No. 9],' that sort of thing. [¶] I haven't seen her in a few
years, but I'm pretty sure that's her. I didn't recognize her when you
said 'Alex,' I thought it was a guy, but I'm pretty sure that's her from
that side view. [¶] . . .
"THE COURT: Do you feel that knowing her, as you have
described, that will make it difficult to look at her testimony as you
would any other witness? Remember the instruction I gave you,
each witness must be judged by the same standard. And if you can
do that, fine. If you can't do that, that's fine, too.
"[JUROR NO. 9]: Well, I mean, I think that she could—I mean,
anybody could make a mistake, I mean, but I feel like, since I know
her, I mean, I know that she—I believe that I would probably think
that she wasn't lying or anything like that, so I would be pretty
disposed to believe her in certain situations, but recognition is a
different thing—" (Italics added.)
To verify the relationship, the court brought Alejandra into the courtroom.
Alejandra recognized juror No. 9 and said, "Oh, hi." After Alejandra left the courtroom,
the following exchange took place as the court addressed the potential for bias:
"THE COURT: Do you think you could really give [defense
counsel] Ms. Lacher and her client a fair shot, knowing how well
you know Alejandra?
"[JUROR NO. 9]: I was sitting outside thinking about that. One
side of me I would tend to believe her because I know her and I
know she has never been dishonest with me, but the other part of me
I want to believe that I could be fair, because sometimes I will have
two kids that are good kids and they have disagreements, and I have
to still decide which one is telling the truth. So I am put in those
situations more often than I want to.
"THE COURT: Even though you don't think Alejandra would lie to
you, are you open to the possibility that Alejandra could be
completely mistaken?
"[JUROR NO. 9]: Yeah, sure. Sure." (Italics added.)
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The following exchange then took place between the court and the prosecutor:
"THE COURT: I will tell you what we ought to do, is this: Unless
counsel wants to see me at sidebar first, why don't I exclude [juror
No. 9] right now and let's talk about it outside of her presence to see
if we should keep [juror No. 9] or not?
"[PROSECUTOR]: Could we have an opportunity to inquire of the
juror, as well.
THE COURT: All right. I will. It is not normal, but if the defense
doesn't object. But let's see if the defense has any questions you
would like to ask. [¶] Mr. Prosecutor?"
The court then provided each of the attorneys an opportunity to question juror No.
9:
"[PROSECUTOR]: [Juror No. 9], as a teacher, again, the situation in
which you are placed now is really you would have the opportunity
to judge credibility and maybe be questioned by Ms. Lacher or other
people, or if I have to impeach her. Can you put yourself, again as a
teacher, in the role as a professional, a professional juror, and make
that hard call, even if you have to see [Alejandra] some other time?
You know, will you feel bad about it if you have to vote not guilty—
"[JUROR NO. 9]: No.
"[PROSECUTOR]: —or don't believe her testimony is credible
enough?
"[JUROR NO. 9]: No. No, I wouldn't feel bad about it. Justice has
to be done. I mean, truly, if she has made a mistake, then she has
made a mistake, and the right person should be held responsible for
it. But I don't think she would be angry at me. I mean, she might be
disappointed, but I don't see her regularly, and I don't have much
contact with her, but, I mean, I would of course want her to get
justice.
"[PROSECUTOR]: So on a less grand scale than what we're dealing
with here, you like her, she is nice—
"[JUROR NO. 9]: Yeah.
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"[PROSECUTOR]: —she's a good kid, but if she turned in—she
tanks a test and gets a 55.
"[JUROR NO. 9]: She still gets an F.
"[PROSECUTOR]: You would still give her an F?
"[JUROR NO. 9]: Yeah.
"[PROSECUTOR]: And you can do that with her testimony?
"[JUROR NO. 9]: Yes. [¶] . . . [¶] And I'm sorry I didn't recognize
her name. I'm sorry about that."
Defense counsel chose not to question juror No. 9.
1. Defense motion to discharge juror No. 9
After juror No. 9 left the courtroom, the court asked defense counsel her opinion
as to whether juror No. 9 should remain on the panel. Defense counsel asked that juror
No. 9 be discharged:
"[DEFENSE COUNSEL]: Although I think that [juror No. 9] wants
to really try really hard, I think that she would really like to think
that she can be fair, and I think in light of the really close
relationship that she has, although they can't say close like they see
each other all the time on a daily basis, but it sounds like it's a pretty
close relationship.
"And you saw the reaction of Alejandra when she walked in, 'Oh, hi.'
"I just think it would be kind of difficult and hit pretty close to home
if there was a call where it comes down to we're not really sure if she
made the right recognition or not. And she knows [Alejandra],
knows she wouldn't lie, she might have a harder time—the juror
might have a harder time saying that she thought [Alejandra] was
incorrect. [¶] And so I think that as much as [juror No. 9] would like
to stay and I would like to have her stay, I think that she shouldn't."
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The prosecutor opposed defense counsel's request to excuse juror No. 9, asserting
that juror No. 9 and Alejandra "[were] not peers," they did not owe loyalty to one
another, and their relationship was "one that still guarantees [Velasquez] a fair trial."
The court then inquired of defense counsel whether the defense was that "these
witnesses are lying about your client, or that they are just like everybody else, have the
capacity to be wrong." Although the court told defense counsel she did not have to
answer the question and reveal trial tactics, defense counsel indicated that the defense
would be that the identifications were wrong.
a. Ruling
The court stated it would not release juror No. 9 "because [it] took from what she
said [that] she has no hesitation at all in saying that Alejandra is wrong. If this were an
issue of credibility, Alejandra is lying because Alejandra wants to get someone in trouble,
I think that would be a completely different situation." The court indicated it would
review case law and would consider removing juror No. 9 later "if the case law does not
support me." The court invited counsel to provide helpful or relevant case law.
2. Renewed defense motion to discharge juror No. 9
The trial resumed and the prosecution called its first witness─Alejandra's
boyfriend, Eric─to the stand. Shortly after Eric began testifying, juror No. 9 submitted a
second note to the court indicating she also knew Eric. The court excused the jury, with
the exception of juror No. 9, and conducted another hearing. Juror No. 9 explained her
relationship with Eric:
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"[JUROR NO. 9]: I had him I think in sixth or seventh grade for
history, about—almost probably as many years ago. I don't
remember exactly what year I had him. He was a little guy then. He
was in my classroom. I don't know him nearly as well as I know
Alejandra. And it has been—actually, at first when he came in, I
wasn't sure if it was even him, and then I heard him talk and then I
recognized him. So I don't know him as well.
"THE COURT: Was there anything that happened during the course
of your contact with Eric G. that caused you to form an opinion
about his character for telling the truth or not telling the truth or
being accurate or inaccurate? Or he's just a student?
"[JUROR NO. 9]: No. Yeah, he's just a student, actually. I mean, I
don't remember him ever lying. There are no disciplinary things that
stand out in my mind. He was just a student, like I said, but I do
recognize him." (Italics added.)
The court allowed defense counsel to question juror No. 9. Defense counsel asked
juror No. 9 whether the fact that she recognized two victims "change[d] [her] mindset"
about whether she thought she could be fair to the defense. Juror No. 9 answered: "I
don't believe so. I know it looks like it would be because I am familiar with them, and I
really don't think it would. I really truly—I mean, I want justice not just for the kids, but
for him, as well. I don't want him to be convicted of something that he didn't do. And I
don't want any of them to suffer and to—you know, what can I say?"
The prosecutor then asked juror No. 9 whether she would be able to "render a vote
of not guilty" if she believed Eric were lying or mistaken about the identification. Juror
No. 9 replied: "Yeah, I do, I really believe I could. I don't have much contact with him,
anyway. I mean, I don't think I have even seen him in how many years it has been, but I
really think that I could treat him just like any other witness up there. I really truly
believe that."
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The court then brought in the third victim, David, but juror No. 9 did not recognize
him.
After juror No. 9 left the courtroom, defense counsel consulted with Velasquez
and then requested that juror No. 9 be discharged. The prosecutor indicated he submitted
to the court's judgment.
a. Ruling
The court again denied the defense motion to discharge juror No. 9, stating, "I'm
not convinced there is any sort of synergistic effect because the juror knows two people."
The court initiated a discussion of the issue again after Alejandra and Eric testified
and the jury left the courtroom. Citing People v. Cochran (1998) 62 Cal.App.4th 826 and
People v. Wallace (2008) [44] Cal.4th 1032, the court confirmed its denial of Velasquez's
motion to remove juror No. 9 from the panel, stating:
"And I think it's a discretionary call by the judge. I must tell you I
think most judges would excuse this juror, but that's the way they'd
exercise their discretion. That's not the standard. The standard is if I
so deviated from reasonableness that it's an abuse of discretion. And
I think I've made the right call, but if you find a case, let me know."
(Italics added.)
C. Legal Principles
"[O]ne accused of a crime has a constitutional right to a trial by impartial jurors."
(In re Hitchings (1993) 6 Cal.4th 97, 110; U.S. Const., 6th & 14th Amends.; Cal. Const.,
art. I, § 16.)
"The impartiality of prospective jurors is explored at the preliminary proceeding
known as voir dire." (In re Hitchings, supra, 6 Cal.4th at p. 110.) The United States
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Supreme Court has explained that "[v]oir dire plays a critical function in assuring the
criminal defendant that his Sixth Amendment right to an impartial jury will be honored.
Without an adequate voir dire the trial judge's responsibility to remove prospective jurors
who will not be able impartially to follow the court's instructions and evaluate the
evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir dire impairs the
defendant's right to exercise peremptory challenges where provided by statute or
rule . . . ." (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188.)
The California Supreme Court has explained that "the efficacy of voir dire is
dependent on prospective jurors answering truthfully when questioned." (In re Hitchings,
supra, 6 Cal.4th at p. 110.) "'Voir dire examination serves to protect [a criminal
defendant's right to a fair trial] by exposing possible biases, both known and unknown, on
the part of potential jurors. Demonstrated bias in the responses to questions on voir dire
may result in a juror's being excused for cause; hints of bias not sufficient to warrant
challenge for cause may assist parties in exercising their peremptory challenges. The
necessity of truthful answers by prospective jurors if this process is to serve its purpose is
obvious.'" (Id. at pp. 110-111, quoting McDonough Power Equipment, Inc. v.
Greenwood (1984) 464 U.S. 548, 554.)
Thus, "[a] juror who conceals relevant facts or gives false answers during the voir
dire examination . . . undermines the jury selection process and commits misconduct" (In
re Hitchings, supra, 6 Cal.4th at p. 111) because "[s]uch false answers or concealment on
voir dire . . . eviscerate a party's statutory right to exercise a peremptory challenge and
remove a prospective juror the party believes cannot be fair and impartial." (Ibid.)
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Quoting this court's majority opinion in People v. Diaz (1984) 152 Cal.App.3d 926, 932
(Diaz), the In re Hitchings court explained that "'[j]uror concealment, regardless whether
intentional, to questions bearing a substantial likelihood of uncovering a strong potential
of juror bias, undermines the peremptory challenge process just as effectively as
improper judicial restrictions upon the exercise of voir dire by trial counsel seeking
knowledge to intelligently exercise peremptory challenges.'" (In re Hitchings, supra, at
pp. 111-112, italics added.) Again quoting Diaz, our high state court further explained
that "'[t]he 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.'" (In re
Hitchings, at p. 112, italics omitted, quoting Diaz, at p. 933.)
1. Section 1089 and the "demonstrable reality" standard of review
Section 1089,3 which sets forth the procedure for removing a sitting juror,
"authorizes the trial court to discharge a juror at any time before or after the final
submission of the case to the jury if, upon good cause, the juror is 'found to be unable to
perform his or her duty.'" (People v. Bennett (2009) 45 Cal.4th 577, 621.) "A juror who
3 Section 1089 provides in part: "If at any time, whether before or after the final
submission of the case to the jury, a juror dies or becomes ill, or upon other good cause
shown to the court is found to be unable to perform his duty, or if a juror requests a
discharge and good cause appears therefor, the court may order the juror to be discharged
and draw the name of an alternate, who shall then take a place in the jury box, and be
subject to the same rules and regulations as though the alternate juror had been selected
as one of the original jurors."
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is actually biased is unable to perform the duty to fairly deliberate and thus is subject to
discharge." (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)
"'Once a trial court is put on notice that good cause to discharge a juror may exist,
it is the court's duty "to make whatever inquiry is reasonably necessary" to determine
whether the juror should be discharged.'" (People v. Cunningham (2001) 25 Cal.4th 926,
1029.) The decision to retain or remove a juror under section 1089 "is committed to the
discretion of the trial court." (People v. Thompson (2010) 49 Cal.4th 79, 137.)
However, "an appellate court's review of the decision to remove a seated juror is
not conducted under the typical abuse of discretion standard, but rather under the
'demonstrable reality' test." (People v. Fuiava (2012) 53 Cal.4th 622, 711 (Fuiava).) In
Fuiava, the California Supreme Court explained that "[t]he typical abuse of discretion
standard involves an analysis of whether the trial court's decision is supported by
'"substantial evidence"' and 'has been characterized as a "deferential" standard.'" (Ibid.)
Under this deferential standard, "'[e]ven when there is a significant amount of
countervailing evidence, the testimony of a single witness that satisfies the standard is
sufficient to uphold the finding.'" (Ibid.)
Fuiava further explained that, "[i]n contrast, '[t]he demonstrable reality test entails
a more comprehensive and less deferential review. It requires a showing that the court as
trier of fact did rely on evidence that, in light of the entire record, supports its conclusion
that bias was established. It is important to make clear that a reviewing court does not
reweigh the evidence under either test. Under the demonstrable reality standard,
however, the reviewing court must be confident that the trial court's conclusion is
19
manifestly supported by evidence on which the court actually relied. [¶] In reaching that
conclusion, the reviewing panel will consider not just the evidence itself, but also the
record of reasons the court provides.'" (Fuiava, supra, 53 Cal.4th at p. 712, original
italics omitted, italics added.) The "heightened" and "more stringent" (People v.
Barnwell, supra, 41 Cal.4th at p. 1052)demonstrable reality standard that governs
appellate review of a trial court's decision to retain or remove a sitting juror under section
1089 "more fully reflects an appellate court's obligation to protect a defendant's
fundamental rights to due process and to a fair trial by an unbiased jury." (Ibid.)
"'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."'" (People v.
Wilson (2008) 44 Cal.4th 758, 823 (Wilson).)
"'Except 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.'" (People v. San Nicolas (2004) 34 Cal.4th 614, 644, quoting People v.
McPeters (1992) 2 Cal.4th 1148, 1175, italics added.)
D. Analysis
We begin our analysis by noting that the critical factual question at trial─the
identity of the shooter─was a close issue the jury had difficulty resolving. As discussed
20
more fully in the factual background, ante, police investigators found no forensic
evidence at the shooting scene in front of Alejandra and David's residence or in the
Dodge Stratus later searched by the police that would circumstantially incriminate
Velasquez, and the direct evidence that had any tendency to tie him to the scene as the
shooter was the testimony of the three victims: Alejandra, Eric, and David. However,
their descriptions of the shooter were inconsistent in significant respects. Depending on
which victim was testifying, the shooter had no facial hair (according to Eric) or had a
mustache (according to Alejandra); he wore a long-sleeved shirt (according to Eric and
David) or a short-sleeved shirt (according to Alejandra); he wore long pants (according to
Eric) or shorts that only reached his knees (according to Alejandra); he wore a hat
(according to Eric) or he did not wear anything on his head; he wore a bandanna around
his neck that did not cover up any of his facial features (according to Alejandra and
David) or he wore a handkerchief around his neck and mouth (according to Eric); and he
had a "filled in" tattoo under his right or left eye that could have been a big teardrop
(according to Eric) or he had "dark things around his eyes" that probably were tattoos
(according to Alejandra).4 David was not able to identify Velasquez as the shooter from
a photo lineup.
The jury began its deliberations on November 7, 2012. The jury's difficulty in
deciding whether Velasquez was the shooter is evidenced by the fact that, the next day,
the jury sent the court a note asking for "Eric/Alex/David['s] description [of the] shooter
4 As noted, ante, the prosecution's evidence shows Velasquez has two tattoos under
his eyes: the number "1" under his right eye and a "3" under his left eye.
21
up to [the] point of pointing to [the] shooter in the courtroom and identifying the
defendant as the suspect," and then sent another note (jury note No. 7) asking, "How long
do we keep deliberating until we get to a hung jury?" (Italics added.) In its written
response to jury note No. 7, the court stated: "As to Note 7, the Court will take no action
at this time. If you feel you are unable to resolve the case, please let us know." The court
reporter read back to the jury about 100 pages of testimony, and the jury reached its
verdicts on November 9.
As discussed, ante, the California Supreme Court has explained that a juror who
intentionally or inadvertently gives false answers or conceals relevant facts during voir
dire examination undermines the jury selection process because "[s]uch false answers or
concealment . . . eviscerate a party's statutory right to exercise a peremptory challenge
and remove a prospective juror the party believes cannot be fair and impartial." (In re
Hitchings, supra, 6 Cal.4th at p. 111.) This court explained in Diaz that "[a] juror's
concealment, regardless whether intentional, during voir dire examination of a state of
mind which would prevent a person from acting impartially is misconduct constituting an
irregularity for which new trial may be granted." (Diaz, supra, 152 Cal.App.3d at p. 934,
italics added.)
Here, juror No. 9's failure to disclose during voir dire that Alejandra─the
prosecution witness whose identification of Velasquez as the shooter was the
strongest─was one of her former students with whom she had had a close and loving
personal relationship, was an irregularity that undermined the voir dire process,
Velasquez's right to reasonably exercise a peremptory challenge, and his Sixth
22
Amendment right to an impartial jury. Her failure to disclose this material information, if
intentional, would have justified her disqualification or removal. (Wilson, supra, 44
Cal.4th at p. 823 ["'[I]ntentional concealment of material information by a potential juror
may constitute implied bias justifying . . . her disqualification or removal.'"].)
Although the parties appear to agree that juror No. 9's failure to disclose during
voir dire the nature of her relationship with Alejandra was inadvertent, the record is not
clear on this point. Juror No. 9 ultimately did inform the court, outside the presence of
the other jurors following the prosecutor's reported but not transcribed opening statement,
that Alejandra was one of her former students. Juror No. 9 told the court she "didn't
recognize" Alejandra during voir dire because the court had referred to Alejandra as
"Alex" and she (juror No. 9) "thought it was a guy."
However, the record shows the court twice informed the prospective jurors at the
beginning of the voir dire process that one of the three victims in this case was
"Alejandra Moreno," and it also told them Alejandra was "also known as Alex Moreno."
Thus, the record shows that, although the court referred to Alejandra once by her
nickname, "Alex," it twice identified her by her full name, "Alejandra Moreno." The
court told the prospective jurors that "[t]he purpose of this is to see if you know
anybody." The prosecutor also read aloud the names of the three victims, including
Alejandra's full name. It is not clear from the foregoing record how juror No. 9 could
have believed during her voir dire examination that a witness identified three times as
"Alejandra Moreno"─a name with which juror No. 9 was familiar, as she later revealed
following the prosecutor's opening statement─was "a guy."
23
Regardless of whether juror No. 9's failure to disclose during voir dire her
relationship with Alejandra was intentional or inadvertent, it was an irregularity in the
proceeding that had the effect of "eviscerat[ing] [Velasquez's] statutory right to exercise a
peremptory challenge and remove a prospective juror the party believes cannot be fair
and impartial." (In re Hitchings, supra, 6 Cal.4th at p. 111.) It is likely the defense
would have exercised a peremptory challenge to excuse juror No. 9 during voir dire had
she revealed at that time that she had had a close and loving personal relationship with
Alejandra. We note the defense was also entitled to know during voir dire that a second
victim in this case─Eric─was also a former student of juror No. 9. Juror No. 9's failure
to disclose this latter information was undoubtedly unintentional because Eric was a
minor, both the court and the prosecutor told the prospective jurors his name was "Eric
G.," and juror No. 9 likely did not recognize "Eric G." as her former student because
neither the court nor the prosecutor disclosed his surname. Nevertheless, the defense was
entitled to know during the jury selection process that juror No. 9 had had prior personal
relationships with two of the prosecution's three complaining witnesses so that defense
counsel could intelligently assist in the protection of Velasquez's Sixth Amendment right
to an impartial jury through examination of juror No. 9 regarding those relationships and,
if warranted, through the informed exercise of either a challenge for cause or a
peremptory challenge.
However, by the time juror No. 9 revealed her previous close personal relationship
with Alejandra, juror No. 9 was a sitting juror and Velasquez no longer had an
opportunity to remove her through the exercise of a peremptory challenge. The defense
24
responded to juror No. 9's belated disclosure by moving for her discharge, and the court
denied that motion, relying on juror No. 9's answers (discussed, ante) to questioning by
the court and the prosecutor.
Assuming without deciding that juror No. 9's failure to disclose during voir dire
both the fact and the nature of her relationship with Alejandra was inadvertent or
unintentional, the discharge of juror No. 9 after she was seated on the panel required a
showing by the defense that she was "sufficiently biased to constitute good cause" for the
court to find under section 1089 that she was unable to perform her duty. (Wilson, supra,
44 Cal.4th at p. 823.)
Applying the "less deferential" demonstrable reality standard of appellate review,
as we must (Fuiava, supra, 53 Cal.4th at p. 711), we conclude the court committed
reversible error by denying Velasquez's motion to discharge juror No. 9 following her
disclosure of her relationship with Alejandra because the court's finding that juror No. 9
was able to impartially perform her duty was not manifestly supported by the evidence on
which the court relied─juror No. 9's own "self-serving statement of impartiality" (Diaz,
supra, 152 Cal.App.3d at p. 937)─or the case law the court later cited in support of its
ruling (People v. Cochran, supra, 62 Cal.App.4th 826 & People v. Wallace, supra, 44
Cal.4th 1032, discussed, post).
Specifically, the record shows that, before the prosecution called its first witness
(Eric) and in response to questioning by the court immediately after juror No. 9 looked at
a photograph of Alejandra and disclosed that Alejandra was one of her former students,
juror No. 9 candidly stated:
25
"I loved her. She was awesome. I knew her for actually several
years because she was an avid student of mine."
Juror No. 9 also disclosed that Alejandra had "come back to visit [her] in the past
to say hi." When the court brought Alejandra into the courtroom to verify her
relationship with juror No. 9, Alejandra immediately recognized juror No. 9 and said,
"Oh, hi." After Alejandra left the courtroom, the court asked juror No. 9 whether she
could give defense counsel and Velasquez "a fair shot, knowing how well you know
Alejandra?" Juror No. 9 candidly replied that " [o]ne side" of her "would tend to believe
[Alejandra] because I know her and I know she has never been dishonest with me."
(Italics added.) Indicating some ambivalence about whether she could fulfill her duty to
serve as an impartial juror, juror No. 9 then stated, "I want to believe that I could be fair."
Juror No. 9's foregoing candid responses─which she gave before the court granted
the prosecutor's request to question Alejandra─established that she was "sufficiently
biased to constitute good cause" (Wilson, supra, 44 Cal.4th at p. 823) for her to be
discharged under section 1089 and replaced by one of the alternates. We are mindful that
the trial judge is ordinarily "'in the best position to assess the state of mind of a juror.'"
(People v. San Nicolas, supra, 34 Cal.4th at p. 644.) However, as already noted, an
exception to this rule applies "'where bias is clearly apparent from the record.'" (Ibid.,
quoting People v. McPeters, supra, 2 Cal.4th at p. 1175.)
Here, bias is clearly apparent from the record. Juror No. 9's foregoing responses
show that she candidly expressed the love she felt for Alejandra, and she stated that
"[o]ne side" of her would "tend to believe [Alejandra]" because she knew Alejandra and
26
she knew Alejandra had never lied to her. As we observed in Diaz, bias necessarily must
be inferred from surrounding facts and circumstances because "'the bias of a juror will
rarely be admitted by the juror himself, "partly because the juror may have an interest in
concealing his own bias and partly because the juror may be unaware of it."'" (Diaz,
supra, 152 Cal.App.3d at p. 937.)
The defense renewed its motion to discharge juror No. 9 when, shortly after Eric
began testifying, juror No. 9 submitted a second note to the court indicating she also
knew Eric. In response to questioning by the court about her relationship with Eric, juror
No. 9 indicated she did not know him as well as she knew Alejandra. However, when the
court asked juror No. 9 whether she had formed an opinion about Eric's character for
telling the truth or not telling the truth, she answered, "I don't remember him ever lying."
After juror No. 9 again indicated she believed she could be impartial, defense
counsel─after juror No. 9 left the courtroom─renewed Velasquez's motion to discharge
her. Although two alternates were still available to replace juror No. 9, the court again
denied Velasquez's motion.
Later, the court again discussed the matter with both counsel outside the presence
of the jury after Eric and Alejandra testified. Citing People v. Cochran, supra, 62
Cal.App.4th 826, and People v. Wallace, supra, 44 Cal.4th 1032, the court confirmed its
denial of Velasquez's motion to remove juror No. 9 from the panel. In making this ruling
the court commented, "I must tell you I think most judges would excuse this juror."
We conclude the court erred again when it denied Velasquez's renewed motion to
discharge juror No. 9 following her disclosure that she also had had a personal
27
relationship with Eric. Juror No. 9's bias as it related to Eric is clearly apparent from the
record, which shows that Juror No. 9 revealed she indeed had formed an opinion about
Eric's character for veracity when she told the court, "I don't remember him ever lying."
In applying the more stringent demonstrable reality standard of review, we
consider "'not just the evidence itself, but also the record of reasons the court provides.'"
(Fuiava, supra, 53 Cal.4th at p. 712.) Here, the case law on which the court relied does
not support its decision.
In Cochran, one of the two cases cited by the court, the defendant claimed he was
deprived of a fair trial because two jurors belatedly disclosed they knew members of the
child victim's family. (People v. Cochran, supra, 62 Cal.App.4th at p. 828.) One juror
stated that her acquaintance with the aunt of the mother of the child was very minimal,
and the other juror disclosed she recognized but did not know a woman in the courtroom
who turned out to be a grandmother of the victim. (Id. at p. 830.) In affirming the
judgment of conviction, the Court of Appeal noted that "the evidence of guilt was
extremely strong." (Id. at p. 831.) Cochran is easily distinguishable. First, unlike the
juror in Cochran who had a "very minimal" acquaintance with relatives of the victim, the
challenged juror here (juror No. 9) had had a personal relationship with two of the three
victims who testified at trial, she indicated she had had a loving relationship with one of
them (Alejandra); and she made candid statements early in the trial, following her belated
disclosure of these relationships, in which she indicated that although she believed she
could be impartial, "one side" of her would tend to believe one of the victims (Alejandra)
and she did not remember the other victim (Eric) "ever lying." Second, unlike the
28
evidence of guilt in Cochran, the evidence of Velasquez's alleged guilt was not
"extremely strong," as shown by the fact that the jury sent a note to the court asking how
long it needed to deliberate before it became a hung jury.
The second case on which the court relied, People v. Wallace, supra, 44 Cal.4th
1032, also does not support the court's denial of Velasquez's motion to discharge juror
No. 9. In Wallace, the defendant brought a motion for mistrial after the jury foreperson
informed the court that either the defendant's cousin or a friend of the cousin told the
foreperson in a hallway that defendant was innocent. (Id. at p. 1083.) The foreperson
told the court that, although she felt a bit intimidated by the encounter, it would not affect
her ability to be fair and impartial. (Ibid.) Applying the deferential abuse of discretion
standard of review, the Court of Appeal affirmed the denial of the mistrial motion. (Id. at
p. 1084.) Wallace is distinguishable on its facts, and is also inapposite because it
involved the application of a deferential standard of appellate review, not the
demonstrable reality standard, which is a "'more comprehensive and less deferential'"
standard of review. (Fuiava, supra, 53 Cal.4th at p. 712.)
For all of the foregoing reasons, the judgment must be reversed and the matter
remanded for further proceedings.5
5 In light of our decision, we need not, and do not, reach Velasquez's numerous
claims of prejudicial evidentiary error.
29
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
30
People v. Velasquez CA4/1
Combined Opinion