People v. Diaz

• Decision Date: 07 March 1984
• Docket Number: Cr. 13605
• Citation: 200 Cal.Rptr. 77,152 Cal.App.3d 926
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Harvey DIAZ, Defendant and Appellant.

Page 77

200 Cal.Rptr. 77

152 Cal.App.3d 926

The PEOPLE, Plaintiff and Respondent, v. Harvey DIAZ, Defendant and Appellant.

Cr. 13605.

Court of Appeal, Fourth District, Division 1, California.

March 7, 1984.

Hearing Denied May 2, 1984.

Jeffrey S. Wasserman, Manhattan Beach, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Jay M. Bloom, Keith I. Motley and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

WORK, Associate Justice.

Harvey Diaz appeals a judgment after a jury convicted him of assault with a deadly weapon (knife) (Pen.Code, § 245, subd. (a)), ¹ contending the trial court abused its discretion in not discharging the jury foreperson upon learning (in midtrial) she concealed during voir dire she had been feloniously assaulted at knifepoint during an attempted rape. He claims this denied him his right to an impartial and unbiased jury. We hold the juror's failure to correctly respond to voir dire questions having a substantial likelihood to disclose facts showing a strong potential for juror bias prevented Diaz from intelligently inquiring into an area of potential bias upon which to base a challenge for cause or to knowingly exercise one of his remaining peremptory challenges. Because the concealment of the fact the juror had been a victim of the same crime with which Diaz was charged is so directly related to potential juror bias and because the presumption of prejudice arising from the jury misconduct has not been rebutted by either the People or a review of the entire record, we find the nondisclosure was prejudicial and reverse the judgment.

Factual and Procedural Background

On February 14, 1981, at about 7 p.m., Tony Lopez picked up Maureen and Debby DeLeon to take them to a dance. As he entered his car, he was attacked by Steve Loronia and was joined by Ralph Cornejo and Diaz. Maureen saw Diaz unsnap a black case attached to his belt and then make repeated thrusting motions in the direction of Lopez; however, she could not tell whether Diaz was holding a knife. Lopez eventually escaped from the assailants, ran to a nearby home and was transferred to the hospital where he was treated for multiple knife wounds to his arm, chest and abdomen, including puncture wounds of his lung and liver. The assailants returned to their car and departed. Approximately ninety minutes later, the Brawley Police stopped the get-away car and arrested Diaz, who was wearing a knife and sheath on his belt.

A one-count information charged Diaz with assault with a deadly weapon and alleged he inflicted great bodily injury (§ 12022.7). After a jury trial, he was found guilty of both; however, his motion for new trial was granted. Upon retrial, a jury convicted him of only the assault with a deadly weapon.

During the second day of jury selection for the retrial, the court told the prospective jurors the nature of Diaz's charges, explaining he allegedly assaulted Lopez with a knife and by means of force likely to produce great bodily injury and inflicted great bodily injury upon his victim. The trial court posed a series of questions to the panel, including: "Have any of you or has any one close to you ever suffered a similar charge to that in this case? [p] Have any of you or has anyone close to you ever been a complaining witness or a victim in a case of this kind?" (Italics added.) Prospective juror Wolski sat silent. Later she was present during the voir dire of prospective juror Conti, who was asked by the district attorney if he or any of his friends had ever been involved in a knife fight. After Conti was challenged, Wolski was voir dired. The trial court asked if there was anything in her background or mind which if known to the attorneys might cause them to choose some other juror in her place. She responded "No." During questioning by defense counsel, she stated she had heard the questions asked of other jurors, and denied, if specifically asked, her answers would be different than theirs.

During the last day of a four-day trial and after the People rested, Wolski told court personnel she had been attacked at knife point during a rape attempt, leaving a scar on her chin and had stabbed her assailant. At an in-chambers hearing, the bailiff stated Wolski told him she was the victim of an attempted rape during which the assailant held a knife on her, gashing her chin; she escaped, hunted him down and stabbed him, stating she stabbed him in the wrong place since she didn't kill him. A court clerk corroborated the bailiff's testimony. Defense counsel then asked them their impression regarding her as an impartial juror. The bailiff responded: "My opinion, she is prejudiced as to violent crimes, especially that of women. She is obsessed with rape, with victims, and the men who perpetrate this act. I cannot honestly say that she would be an impartial juror as to violent crime. Now, whether it would tie into this, whether she would still have any knowledge of this crime as to supposedly rape, such that she has worked with or attempted rape, I don't know. But she does have a very acute obsession with rape." The clerk concurred. Wolski explained she was the victim of an attempted rape 13 years earlier when she was assaulted by a man who gashed her with a knife. When he let go, she pushed against him causing his knife to enter him. Although she stated she did not remember being specifically asked whether she had been a victim of any similar type of incident involving a knife, she later stated, when the judge asked her regarding similar incidents, it never occurred to her the assault on her was an assault with a deadly weapon. She stated the incident would not bias her perception of the case. The trial court then asked defense counsel whether he was willing to proceed with 11 jurors. ² Upon defense counsel's refusal to so stipulate, the trial court denied his motion to dismiss Wolski.

THE TRIAL COURT ERRED IN NOT DISCHARGING THE JURY FOREPERSON

Diaz contends the trial court abused its discretion by not discharging Wolski as a juror for, either intentionally or unintentionally, not admitting during voir dire she had been threatened and cut by a knife-wielding assailant. He contends her participation on the jury, indeed as foreperson, denied him his right to an impartial and unbiased jury, and states had the juror confessed this critical detail he would have excused her peremptorily. ³ Finally, he argues the trial court's inquiring whether he would stipulate to be tried by eleven jurors shows the court believed good cause existed or, at minimum, it was improperly influenced by the possibility of a mistrial for the lack of an alternate juror.

We conclude the trial court erred in refusing to discharge the juror and, in the absence of an alternate juror, discharging the jury pursuant to section 1123. The necessity of her expulsion rests on the lack of any evidence to rebut the presumption of prejudice arising from her nondisclosure and statements to court personnel during trial, besides her self-serving statement regarding her ability to deliberate impartially, in light of the underlying deprivation of Diaz' right to an impartial and unbiased jury through the undermining of the integrity of the voir dire process and controverting his statutory right to a specific number of peremptory challenges.

"[T]he peremptory challenge is a critical safeguard of the right to a fair trial before an impartial jury ...." (People v. Williams, 29 Cal.3d 392, 405, 174 Cal.Rptr. 317, 628 P.2d 869.) "The failure to grant a defendant the prescribed number of peremptory challenges when the record reflects his desire to excuse a juror before whom he was tried is reversible error." (People v. Shaw, 237 Cal.App.2d 606, 611, 47 Cal.Rptr. 96; People v. Diaz, 105 Cal.App.2d 690, 695, 234 P.2d 300.) Likewise, the improper refusal by the trial court to allow counsel to pose questions reasonably designed to assist in intelligently exercising peremptory challenges may constitute reversible error. (See People v. Williams, supra, 29 Cal.3d 392, 407-408, 410, 412, 174 Cal.Rptr. 317, 628 P.2d 869.)

Juror 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. (See Odom v. State, (Miss.1978) 355 So.2d 1381, 1383.) Where a party has examined the jurors concerning their qualifications during voir dire and any of them have failed to respond truthfully, " 'it is manifest he [has been] deprived of his right to challenge for cause, and [has been] deceived into foregoing his right of peremptory challenge.' " (People v. Galloway, 202 Cal. 81, 94, 259 P. 332.) Any particular manner in which a jury is impaneled which " 'prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned.' " (People v. Diaz, supra, 105 Cal.App.2d 690, 695, 234 P.2d 300, quoting Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 414, 38 L.Ed. 208.)

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. "[E]xperience has shown that one of the most effective means to free the jury box from persons unfit to be there is the exercise of the peremptory challenge. The right may not be abridged or denied. Arbitrary abridgment or denial of the right runs counter to principles vital to the integrity and maintenance of the system of a constitutional right of trial by...