Filed 8/23/17
                CERTIFED FOR PUBLICAITON



       IN THE COURT OF APPEAL OF THE STATE OF
                     CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION ONE


THE PEOPLE,                            B277631

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. MA067023)
       v.

HERIBERTO DEJESUS
ROMERO,

       Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Christopher G. Estes, Judge. Reversed.
     Valerie G. Wass, under appointment by the Court of
Appeal, for Defendant and Appellant.
     Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, and Kathy S. Pomerantz, Deputy
Attorney General, for Plaintiff and Respondent.
                      ——————————
      A jury convicted Heriberto Dejesus Romero of assault
with intent to commit rape, attempted kidnapping to commit
rape, assault with intent to commit rape, false imprisonment
by violence, and dissuading a witness from reporting a
crime. Romero appeals based on several claims. Finding
merit in one claim, we reverse.
                        BACKGROUND
A.    Overview of Charges
      In a nine-count information filed by the Los Angeles
County District Attorney on January 12, 2016, Romero was
charged with sexually assaulting two women: Brittney P.
and Marissa G. With respect to Brittney P., Romero was
charged with assault with intent to commit rape (Pen. Code,
§ 220, subd. (a)(1); count 1.)1 Romero was also charged with
attempted forcible rape (§§ 664, 261, subd. (a)(2); count 2);
attempted kidnapping to commit rape (§§ 664, 209,
subd. (b)(1); count 3); false imprisonment by violence (§ 236;
count 4); and dissuading a witness from testifying (§ 136.1,
subd. (a)(1); count 9.) With respect to Marissa G., Romero
was charged with kidnapping to commit rape (§ 209,
subd. (b)(1); count 5); assault with intent to commit rape
(§ 220, subd. (a)(1); count 6); attempted forcible rape (§§ 664,


     1 All further statutory references are to the Penal Code
unless otherwise indicated.




                               2
261, subd. (a)(2); count 7); and false imprisonment by
violence (§ 236; count 8).
       The trial court later dismissed count 5 pursuant to
section 995. Count 9 was subsequently amended to conform
to proof, charging Romero with violating section 136.1,
subdivision (b)(1) rather than subdivision (a)(1). The trial
court also dismissed counts 2, 4, and 7 pursuant to section
1385. After a jury found Romero guilty as charged,2 the
trial court sentenced Romero to a total term of 23 years in
state prison.
B.     Prosecution Evidence for Counts 1, 3 and 9
       On January 17, 2015, at 9:00 p.m., Brittney P. jogged
on the track at Pelona Vista Park in Palmdale. She had
parked her car in the nearby parking lot. When she arrived
at the park, there were no other cars in the lot and no one
else was at the track. Brittney wore jogging pants, a shirt,
jacket, and gloves. She had her cell phone with her.
       After she had run for about 15 minutes, Brittney saw
Romero looking down on the track from the parking lot. She
continued running. At some point, Romero began running


     2 The charges remaining after the 995 motion, 1385
motion, and amendment were as follows: assault with intent
to commit rape (§ 220, subd. (a)(1); count 1); attempted
kidnapping to commit rape (§§ 664, 209, subd. (b)(1);
count 3); assault with intent to commit rape (§ 220,
subd. (a)(1); count 6); false imprisonment by violence (§ 236;
count 8); and dissuading a witness from reporting a crime
(§ 136.1, subd. (b)(1); count 9).




                              3
on the track. He wore black sweatpants and a sweatshirt.
Romero ran up behind Brittney and put his hand over her
mouth. She bit him, and they both fell to the ground.
Brittney stood up and began to walk away. Romero said he
was sorry, and indicated that he thought Brittney was
someone else. Brittney said she was going to leave. In
English, Romero told Brittney that he wanted to tell her
something and told her to come closer. Brittney did not
comply. She started to walk away sideways. Romero ran in
front of Brittney. She felt her life was in danger. Romero
told Brittney to go to the “dark area” of the park, which was
about 30 feet away. She refused, and Romero told her he
had a knife. He then grabbed at his pants pocket as if he
was holding a knife.
       Romero threw Brittney to the ground and got on top of
her. He thrust his pelvis into her body. She screamed and
told him to stop. Brittney tried to wiggle her body from
underneath Romero. He unzipped her jacket and grabbed
her breasts over her shirt. He also kissed Brittney’s neck.
She continued to struggle with Romero and tried to get him
off of her. At some point, Brittney removed her gloves and
scratched Romero on the back of his neck. Romero began to
pull down Brittney’s pants and tried to spread open her legs.
Brittney attempted to use her cell phone to call for help
three or four times, but the phone repeatedly froze. Romero
took the phone from Brittney and threw it about six feet
away.




                              4
      Romero pulled Brittney’s pants down to the middle of
her thighs. She screamed louder. Romero told Brittney to
“shut up” in English but called her a “stupid bitch” in
Spanish. He looked up at the parking lot as though he had
heard something. Brittney was then able to pull up her
pants, pick up her cell phone, and run to her car. Romero
walked away in a different direction from Brittney. When
Brittney reached her car, she noticed a red Chevy pickup
truck in the parking lot. She took a partial picture of the
truck’s license plate, which read “A8425.”
      Brittney drove to her friend’s house and then went to
the police to report the incident. She could not describe her
attacker to the police because it had been dark outside.
Brittney then went to the hospital where a forensic nurse
performed a sexual assault exam. Brittney also spoke with a
detective at the hospital and said her attacker was five feet
eight inches, and had brown eyes and thin lips. The
evidence collected during the sexual assault exam was
analyzed for DNA. Romero was a major contributor of the
DNA obtained from Brittney’s neck where Romero had
kissed her.3 He was also a contributor of the DNA obtained
from Brittney’s cheek.4



     3 As to this sample, the probability of someone having
the same DNA as Romero was one in 4.78 quintillion.
     4 As to this sample, the probability of someone having
the same DNA as Romero was one in 3.83 billion.




                             5
C.    Prosecution Evidence for Counts 6 and 8
      On September 15, 2015, around 5:30 p.m., Marissa G.
ran on a dirt trail near the aqueduct in Lancaster. She wore
running shorts and a long-sleeve workout top. Romero
jumped in front of her from a shrub. His pants were lowered
and his erect penis was exposed. He wore a short-sleeve
bright aqua blue T-shirt and blue jeans. The color of the T-
shirt resembled the color of a San Jose Shark’s jersey. The
T-shirt also had black stains resembling oil all over it.
      Romero grabbed Marissa by her shoulders and threw
her onto the ground. He got on top of her; she could feel his
penis. Marissa screamed and tried to free her arms. Romero
used his left hand to grab Marissa’s breast under her shirt,
and used his right hand to attempt to pull down her shorts.
Marissa hit Romero on his nose with a closed fist.
      After Marissa hit Romero, he backed off and ran away.
Marissa reported the incident to the police the next day. She
described her attacker to a sketch artist, and viewed a
photographic line up. Marissa could not identify her
attacker from the photos. About a week after the incident,
however, Marissa viewed another photo six-pack, and
picked Romero’s photo “in less than ten seconds,” according
to the detective investigating the case.
      Based on the partial license plate number provided by
Brittney, the detective obtained the residential address of
the pickup truck’s registered owner. The police searched the
residence and found two aqua-blue-colored shirts in one of
the bedrooms. One of the shirts, which was found in a




                             6
hamper, was a Sharks’ jersey with dark-colored stains on it.
In that same bedroom, the police also found Romero’s
California driver’s license as well as a DMV registration for
a Chevy with license plate number 7A84257. Romero’s name
was on the registration. Romero did not present any
witnesses at trial and did not testify on his own behalf.
D. Juror No. 7
      During a break that took place after Marissa had
started her testimony, Juror No. 7 told the trial court that
Marissa may have been a student of hers. The trial court
addressed the issue after the lunch break but before trial
resumed. With the prosecution and defense counsel present
and outside the presence of the other jurors, the trial court
questioned Juror No. 7. She said she was a high school
teacher and that she was “very sure” Marissa had been a
student of hers about three years earlier. The trial court
noted that it was not unusual for jurors to have had prior
contact with witnesses in this particular community. The
following exchange then occurred:
      The Court: Marissa has testified now, and you’ve
heard what your—we’ve discussed during jury selection,
your obligation is to be fair and impartial to both sides. That
you cannot prejudge the case one way or the other based on
anything outside of the evidence that you heard in the four
corners of the courtroom. Anything about your contact with
Marissa, her being a student of yours a few years ago, do you
think is going to affect your ability to be fair and impartial to
both sides?




                               7
      Juror No. 7: Not really. She was a good student. I
remember positives. But I still think I can be fair.
      The Court: Okay. So nothing—the positives were
positives that—when she followed through with whatever
her obligations were as a student, but anything about those
contacts with her is going to cause you to favor her
testimony or to prejudge this case in any way?
      Juror No. 7: I don’t think so.
      Romero’s attorney argued that Juror No. 7 should be
removed because the defense theory was that this was a case
of mistaken identity. “[I]f this juror’s prior experience with
the witness was that she is diligent, follows through,”
defense counsel continued, “there’s a good possibility she
might rely on her past experiences in assessing whether or
not Marissa was wrong in this particular case, which would,
obviously, undermine the juror’s fact-finding function.” The
prosecutor responded that Juror No. 7 said she could put her
relationship with Marissa aside, and that based on that,
“there’s nothing that would indicate that she would not
follow through with her obligation, considering that she did
follow the court’s instruction to notify the court right away.”
      The trial court concluded: “The Court did make the
inquiry of Number 7 and brought the issue up in several
different ways: ultimately, would her contact and prior
relationship with Marissa affect her ability to be fair and
impartial? She indicated that she did not believe it would.
The Court will accept her word in that regard.”




                               8
                         DISCUSSION
      Romero contends that the trial court committed federal
constitutional error by failing to remove Juror No. 7 when
good cause existed to do so. We agree.5
      Either party may challenge an individual juror for “an
actual bias.” (Code Civ. Proc., § 227, subd. (d).) “Actual
bias” in this context is defined as “the existence of a state of
mind on the part of the juror in reference to the case, or to
any of the parties, which will prevent the juror from acting
with entire impartiality, and without prejudice to the
substantial rights of any party.”6 (Code Civ. Proc., § 225,


     5  Because we agree, we need not reach Romero’s other
claims on appeal which challenge his convictions for the
attempted kidnapping of Brittney as well his section 136.1,
subdivision (b)(1), conviction. We do note, however, that
sufficient evidence supported both convictions. Further,
although all agree that the abstract of judgment incorrectly
states Romero was convicted of dissuading a witness from
testifying—rather than dissuading a witness from reporting
a crime—our reversal renders that error moot.
     6 In general, what constitutes “actual bias” of a juror
varies according to the circumstances of the case. (In re
Carpenter (1995) 9 Cal.4th 634, 653–654.) In assessing
whether a juror is “impartial” for federal constitutional
purposes, the United States Supreme Court has stated:
“Impartiality is not a technical conception. It is a state of
mind. For the ascertainment of this mental attitude of
appropriate indifference, the Constitution lays down no
particular tests and procedure is not chained to any ancient
and artificial formula.” (United States v. Wood (1936) 299



                               9
subd. (b)(1)(C); People v. Wheeler (1978) 22 Cal.3d 258, 273–
274.) A sitting juror’s actual bias that would have supported
a challenge for cause also renders the juror unable to
perform his or her duties and thus subject to discharge.
(People v. Keenan (1988) 46 Cal.3d 478, 532.)
      A trial court’s authority to discharge a juror is granted
by section 1089, which provides: “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 or her
duty, . . . 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.” An inquiry sufficient to
determine the facts is required whenever a trial court is put
on notice that good cause to discharge a juror may exist.
(People v. Burgener (1986) 41 Cal.3d 505, 520–521.)
      Both the scope of any investigation and the ultimate
decision whether to discharge a given juror are committed to
the sound discretion of the trial court. (People v. Bradford


U.S. 123, 145–146.) “ ‘The theory of the law is that a juror
who has formed an opinion cannot be impartial.’ [Citation.]
[¶] It is not required, however, that the jurors be totally
ignorant of the facts and issues involved. . . . It is sufficient
if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.”
(Irvin v. Dowd (1961) 366 U.S. 717, 722–723.)




                               10
(1997) 15 Cal.4th 1229, 1348.) Consequently, “[w]e review
for abuse of discretion the trial court’s determination to
discharge a juror and order an alternate to serve. [Citation.]
If there is any substantial evidence supporting the trial
court’s ruling, we will uphold it. [Citation.] We have also
stated, however, that a juror’s inability to perform as a juror
must ‘ “appear in the record as a demonstrable reality.” ’ ”
(People v. Marshall (1996) 13 Cal.4th 799, 843.) Moreover,
“a trial judge who observes and speaks with a . . . juror and
hears that person’s responses (noting, among other things,
the person’s tone of voice, apparent level of confidence, and
demeanor), gleans valuable information that simply does not
appear on the record.” (People v. Stewart (2004) 33 Cal.4th
425, 451; see People v. Cowan (2010) 50 Cal.4th 401, 437.)
      Nevertheless, a court abuses its discretion when its
ruling “falls outside the bounds of reason.” (People v.
DeSantis (1992) 2 Cal.4th 1198, 1226.) This is just such a
case. At the outset, we note that neither Romero nor the
Attorney General cite a case factually similar to this one:
specifically, where a trial court allowed a juror to remain on
the panel after learning the juror was personally acquainted
with the victim herself to the depth and degree made
manifest by the existence of a teacher-student relationship
from which, even three years later, the teacher continued to
have positive memories and impressions.7 We also found no

     7 By way of comparison, the circumstances where
courts of appeal have upheld a juror’s retention after
disclosure of some connection to a potential witness, do not



                              11
case matching this fact pattern in California jurisprudence:
this is likely because in a situation such as this, where the
juror clearly knew the victim, apparently had frequent
personal interaction with the victim in an academic
environment (which is customary in a teacher-student
relationship) and admitted a favorable impression of the
victim, it would have been axiomatic for the court to excuse


come close to the type of personal relationship that exists
between a high school teacher and her student. In People v.
Maciel (2013) 57 Cal.4th 482, 543, following opening
statements, a juror informed the court that he worked in
general maintenance at the central jail and knew of two
deputies who would be testifying at trial. (One deputy was
to testify about an attack by the defendant on another
inmate in jail, the other was to testify about the defendant’s
possession of shanks in jail.) The juror said that he did not
“ ‘really know’” the deputies, “ ‘but they work the same shift
as me.’ ” He had never seen either deputy outside of work,
or socialized with either one of them, but said, “ ‘I have had
lunch with them in the same cafeteria.’ ” In People v. Rangel
(2016) 62 Cal.4th 1192, 1210–1211, a juror reported an
acquaintance with the victim’s brother—a likely witness
during the penalty phase of the trial. (The witness taught
an aerobics class the juror had attended a few times.) In
People v. McPeters, (1992) 2 Cal.4th 1148, 1174–1175, a juror
was acquainted with the victim’s husband—a likely trial
witness—due to a recent business transaction. (The juror
was in the process of buying a house and the witness was the
seller’s real estate agent.) In all three instances, the trial
court was found to have acted within its discretion in
declining to discharge the juror.




                              12
and replace that juror.8 Doing so would have eliminated any
potential concerns regarding the juror’s impartiality and
precluded the issue from becoming a claim on appeal.
Almost certainly, if, at the time of jury selection, the court
had known that Juror No. 7 had been Marissa’s high school
teacher, the court would have excused Juror No. 7 from that
case. The same standard that almost every court would
have exercised at the beginning of trial should have guided
this trial court in the midst of trial, at the time of Juror
No. 7’s disclosure.
      Thus, we conclude that under these facts, the court
abused its discretion in refusing to discharge Juror No. 7.
Critically, it does not appear that the court looked beyond
Juror No. 7’s statement that she did not “think” her
favorable teacher-student relationship with Marissa would
affect how she perceived the evidence and participated in
deliberations. Therefore, we are not confident that the trial
court’s conclusion is manifestly supported by evidence on
which the court actually relied. (See People v. Barnwell
(2007) 41 Cal.4th 1038, 1052–1053.) As with any teacher-
student relationship, Juror No. 7’s contact with Marissa was
relatively sustained—presumably lasting at least the length

     8 We note that the trial court failed to ask Juror No. 7
about these relevant details, including how long the juror
had taught Marissa, how many days a week she saw Marissa
during that time, the depth of interaction between the juror
and Marissa when in class together, and whether she saw
Marissa outside the context of this relationship.




                             13
of an academic term if not an entire school year or longer.
That, years later, Juror No. 7 remembered this particular
student and could recall both her performance and
disposition speaks to the level and depth of the relationship.
Juror No. 7’s favorable impression of her former student was
especially critical given that the counts involving Marissa
relied on Marissa’s credibility and ability to recall the details
of the crime. Although Brittney’s assault yielded DNA
evidence that Romero could not reasonably contest,
Marissa’s case was not so supported, relying exclusively on
witness identification rather than forensics.
      Consequently, we hold the trial court should have
sustained Romero’s challenge regarding Juror No. 7. Having
found federal constitutional error, we must decide if it
requires reversal of Romero’s convictions. Most federal
constitutional violations are subject to harmless error review
under Chapman v. California (1967) 386 U.S. 18.
(Washington v. Recuenco (2006) 548 U.S. 212, 218.) Not so
for those federal constitutional errors deemed “structural,”
which require automatic reversal without a demonstration of
harm to the defendant. (Ibid.) By their very nature,
structural errors render a trial fundamentally unfair or an
unreliable determinant of a defendant’s guilt or innocence.
(Neder v. United States (1999) 527 U.S. 1, 8–9.) For an error
to be structural, it must affect the entire “framework within
which the trial proceeds.” (Arizona v. Fulminante (1991) 499
U.S. 279, 310.)




                               14
       Denial of the right to an unbiased jury is one such
error. (People v. Nesler (1997) 16 Cal.4th 561, 579.) Romero
was entitled to be tried by 12, not 11, impartial and
unprejudiced jurors. “Because a defendant charged with
crime has a right to the unanimous verdict of 12 impartial
jurors [citation], it is settled that a conviction cannot stand if
even a single juror has been improperly influenced.” (People
v. Pierce (1979) 24 Cal.3d 199, 208.) Therefore, “we must set
aside the verdict, no matter how convinced we might be that
an unbiased jury would have reached the same verdict,
because a biased adjudicator is one of the few structural trial
defects that compel reversal without application of a
harmless error standard.” (Nesler, at p. 579.) Although
Romero argues that the trial court’s error requires reversal
of his convictions in counts 6 and 8 only, when, as here, an
error has affected the entire trial framework, we cannot
parse relief in this manner. When structural error has been
found, “a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence, [citation] and
no criminal punishment may be regarded as fundamentally
fair.”9 (Rose v. Clark (1986) 478 U.S. 570, 577–578.)




      9However, there is no double jeopardy bar to retrial of
the case. (People v. Hernandez (2003) 30 Cal.4th 1, 6.)




                               15
                     DISPOSITION
     The judgment is reversed.
     CERTIFIED FOR PUBLICATION.



                                 JOHNSON, J.

We concur:



             ROTHSCHILD, P. J.



             CHANEY, J.




                           16
