                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44520

STATE OF IDAHO,                                    )    2018 Unpublished Opinion No. 315
                                                   )
       Plaintiff-Respondent,                       )    Filed: January 9, 2018
                                                   )
v.                                                 )    Karel A. Lehrman, Clerk
                                                   )
VALENTIN CALVILLO,                                 )    THIS IS AN UNPUBLISHED
                                                   )    OPINION AND SHALL NOT
       Defendant-Appellant.                        )    BE CITED AS AUTHORITY
                                                   )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. John K. Butler, District Judge.

       Judgment of conviction and sentence of thirty years with fifteen years determinate
       for one count of sexual abuse of a child and six counts of lewd conduct with a
       minor, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Valentin Calvillo appeals from the district court’s judgment of conviction entered upon a
jury verdict finding him guilty of one count of sexual abuse of a child and six counts of lewd
conduct with a minor. On appeal, he asserts the district court erred by denying his motion for
mistrial based on allegedly prejudicial statements made by two prospective jurors in front of the
entire jury venire. We affirm.
                                                   I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In June 2010, a grand jury indicted Calvillo on eight counts of lewd conduct with a
minor, Idaho Code § 18-1508, and two counts of sexual abuse of a child, I.C. § 18-1506.
Calvillo pled not guilty and proceeded to trial.

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       Calvillo’s first trial began in November 2010.         On the third day of trial Calvillo
absconded to Mexico and did not return. The trial continued without him, and in his absence the
jury found him guilty of seven counts of lewd conduct with a minor and one count of sexual
abuse of a child. In May 2011, Calvillo’s bonding company returned him to the United States.
Upon his return, the district court sentenced him to an aggregate thirty-year sentence with fifteen
years determinate. Calvillo appealed. We affirmed the district court. State v. Calvillo, 156
Idaho 283, 323 P.3d 825 (Ct. App. 2014).
       Calvillo then petitioned for post-conviction relief. The State stipulated that Calvillo’s
trial counsel had been ineffective because counsel failed to present any witnesses in Calvillo’s
defense and waived closing argument. The district court granted Calvillo’s petition for post-
conviction relief, vacated the jury verdict and judgment of conviction from the first trial, and
ordered a new trial.
       Calvillo’s second trial on one count of sexual abuse of a child and seven counts of lewd
conduct with a minor began in May 2016. During voir dire, the court inquired whether any
potential juror had personal knowledge related to the case. In response, one prospective juror
stated in front of the jury panel that she had “worked at the jail as a nurse while Mr. Calvillo was
incarcerated.” The court immediately excused her from the jury panel. Additionally, a second
prospective juror responded that he had a professional relationship with Calvillo from “about
2008 until about the time he went missing.” The court also excused him from the jury panel.
Calvillo moved for mistrial based on the statements that Calvillo had been incarcerated and went
missing, arguing the statements had infected the entire jury panel with information related to
Calvillo’s incarceration and with information that implied he ran from the charges because of a
guilty conscience. The district court denied the motion, and the trial proceeded. The jury
returned a guilty verdict on one count of sexual abuse of a child and six counts of lewd conduct
with a minor.     The jury acquitted Calvillo of one count of lewd conduct with a minor.
Ultimately, the district court entered a judgment of conviction and sentenced Calvillo to an
aggregate thirty-year sentence with fifteen years determinate. Calvillo timely appeals.




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                                                 II.
                                            ANALYSIS
A.     Our Standard of Review is Well Settled
       In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A
mistrial may be declared upon motion of the defendant, when there occurs during the trial an
error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is
prejudicial to the defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our
standard for reviewing a district court’s denial of a motion for mistrial is well established:
       [T]he question on appeal is not whether the trial judge reasonably exercised his
       discretion in light of circumstances existing when the mistrial motion was made.
       Rather, the question must be whether the event which precipitated the motion for
       mistrial represented reversible error when viewed in the context of the full record.
       Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
       of discretion” standard is a misnomer. The standard, more accurately stated, is
       one of reversible error. Our focus is upon the continuing impact on the trial of the
       incident that triggered the mistrial motion. The trial judge’s refusal to declare a
       mistrial will be disturbed only if that incident, viewed retrospectively, constituted
       reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983).
       As a preliminary matter, Calvillo asserts the long-standing standard of review blends the
reversible error standard (that he equates to structural error) and the harmless error standard,
which he contends is inconsistent with the more recent pronouncements in State v. Perry, 150
Idaho 209, 245 P.3d 961 (2010). Calvillo’s main objection to the current standard is its focus on
the entire context of the proceedings. According to Calvillo, prejudicial statements made during
voir dire constitute structural defects in the trial because they undermine the defendant’s right to
a fair trial by an impartial jury, and thus he argues that the appropriate remedy is automatic
reversal.
       Structural defects are errors that affect the “framework within which the trial proceeds,
rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310
(1991). These errors deprive defendants of basic protections without which “a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no
criminal punishment may be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577-
78 (1986) (citations omitted). Because structural errors “infect the entire trial process,” Brecht v.
Abrahamson, 507 U.S. 619, 630 (1993), and “necessarily render a trial fundamentally unfair,”


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Rose, 478 U.S. at 577, they are not subject to harmless error analysis, but require automatic
reversal. Perry, 150 Idaho at 222, 245 P.3d at 974. Therefore, the appellate courts automatically
vacate and remand where the error in question is a constitutional violation found to constitute a
structural defect affecting the base structure of the trial to the point that a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or innocence. Id. at 227-28, 245
P.3d at 979-80.
       The United States Supreme Court and the Idaho Supreme Court have recognized the
following errors as structural defects that require automatic reversal: (1) complete denial of
counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); (2) biased trial judge (Tumey v. Ohio, 273
U.S. 510 (1927)); (3) racial discrimination in the selection of a grand jury (Vasquez v. Hillery,
474 U.S. 254 (1986)); (4) denial of self-representation at trial (McKaskle v. Wiggins, 465 U.S.
168 (1984)); (5) denial of a public trial (Waller v. Georgia, 467 U.S. 39 (1984)); (6) defective
reasonable-doubt instruction (Sullivan v. Louisiana, 508 U.S. 275 (1993)); and (7) erroneous
deprivation of the right to counsel of choice (United States v. Gonzalez-Lopez, 548 U.S. 140
(2006)). Perry, 150 Idaho at 222-23, 245 P.3d at 974-75.
       In Perry, the Supreme Court stated that as a general rule most constitutional violations
are subject to the Chapman 1 harmless error analysis and do not require automatic reversal.
Perry, 150 Idaho at 223, 245 P.3d at 975. Under Chapman, the appellant has the initial burden
of showing that an error occurred. Perry, 150 Idaho at 227-28, 245 P.3d at 979-80 (restating the
Chapman harmless error test). If the appellant meets that burden, the State then has the burden
of demonstrating to the appellate court beyond a reasonable doubt that the constitutional
violation did not contribute to the jury’s verdict. Perry, 150 Idaho at 227-28, 245 P.3d at 979-80
(restating the Chapman harmless error test).
       We do not have the authority to modify the standard of review of the denial of a motion
for mistrial. Most significantly, the Idaho Supreme Court has used the current standard of
review after issuing its opinion in Perry. State v. Ellington, 151 Idaho 53, 68, 253 P.3d 727, 742
(2011). Moreover, we are not inclined to agree with Calvillo that juror exposure to an allegedly
prejudicial statement during voir dire is a structural defect.




1
       Chapman v. California, 386 U.S. 18 (1967).
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B.      Denial of the Motion For Mistrial Was Not Error
        Having reaffirmed the standard of review, we next consider the statements’ continuing
impact on the trial and analyze whether the statements that precipitated the motion for mistrial
constitute reversible error in the context of the full record.
        During voir dire, the following exchange occurred:
        COURT:          At this stage, I will ask the panel some preliminary questions.
                        Later, the attorneys for all the parties will ask their questions.
                        First, you have heard the charges made in the indictment against
                        the defendant. Other than what I have told you, do any of you
                        know anything about this case either through your own personal
                        knowledge, by discussion with anyone else, or from radio,
                        television, or newspapers? If so, please raise your juror card now.
        ....
                        All right. Thank you.
                        Juror Number 65 . . . what is your source of information of this
                        case?
        JUROR 65:       I worked at the jail as a nurse while Mr. Calvillo was incarcerated.
        COURT:          Then, [Juror 65], you are excused with the thanks of the Court.
                        Juror Number 70 . . . what is your source of information of this
                        case?
        JUROR 70:       I had a professional relationship with the defendant.
        COURT:          Okay. And how long ago might that have been?
        JUROR 70:       It was about 2008 until about the time he went missing.
        COURT:          Okay. And that was--so have you had any dealings with the
                        defendant since 2008?
        JUROR 70:       No, sir.
        COURT:          Okay. And do you have--this is just a yes or no question. Do you
                        have any information relative to this case?
        JUROR 70:       No.
        COURT:          Do you believe that you can be a fair and impartial juror?
        JUROR 70:       You know, I knew the defendant.
        COURT:          Hold on. Hold on. It just calls for a yes or no.
        JUROR 70:       No, sir.
        COURT:          All right. Then, [Juror 70], you are excused with the thanks of the
                        Court.
        On appeal, Calvillo asserts that he was deprived of a fair trial by an impartial jury based
on jurors’ comments that he was incarcerated and went missing. Calvillo argues that his motion
for mistrial should have been granted because Jurors 65 and 70 biased the entire panel of
prospective jurors against him.




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         The State asserts that Calvillo failed to meet his initial burden of showing that the jurors’
statements biased the jury, and thus the district court did not err in denying the motion for
mistrial. We agree.
         Any potential harm from the jurors’ statements does not rise to the level that would
require a mistrial. There is no record-based evidence that suggests the statements had more than
a passing inconsequential effect on the remaining pool of potential jurors.             As voir dire
commenced, and before Jurors 65 and 70 made the statements at issue in this case, the court
issued the following instruction:
         [N]one of the statements, opinions, or beliefs expressed by any of you prospective
         jurors are evidence in this case, and you should not permit any such statements,
         opinions, or beliefs to influence your decision if you are selected to be a juror in
         this case.
The commenting jurors were excused. Each eventual trial juror promised the court that they
would decide Calvillo’s case based solely upon the evidence presented at trial. Importantly, the
court immediately excused Jurors 65 and 70 from jury service after they made the statements in
order to prevent further possible contamination of the jury.
         Furthermore, the jury asked the court just two questions after presentation of evidence as
the trial concluded; neither question involved the topics of Calvillo’s prior incarceration or the
period of time that he went missing.        None of the empaneled jurors asked any follow-up
questions pertaining to Calvillo’s incarceration or about the fact that he went missing, nor did
any juror make any other references to or statements about Calvillo being incarcerated or going
missing. Finally, the jury acquitted Calvillo of one count of lewd conduct with a minor, which
cuts directly against Calvillo’s contention that the jurors’ statements biased the jury against him
and that his right to trial by an impartial jury was violated.
         Moreover, with regard to the incarceration comment, we have previously held that such a
comment is not necessarily “devastating.” State v. Hill, 140 Idaho 625, 631, 97 P.3d, 1014, 1020
(Ct. App. 2004). While the statement in Hill was made in the course of presentation of evidence
and was followed by an instruction to disregard, we noted that a reasonably knowledgeable juror
would have surmised that Hill had been incarcerated. Id. Aside from surmising incarceration,
here, the victim testified that the police came to the house and took Calvillo away after the abuse
was reported. The incarceration remark was neither devastating nor had a continuing impact on
the trial.


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       With regard to the statement made by Juror 70, that statement was not couched in the
context of the instant trial and had no inherent connection to criminality or incarceration.
Calvillo could have gone missing for any number of innocuous reasons, none of them having
anything to do with a guilty conscience or absconding from trial. Furthermore, immediately after
Juror 70 stated that he knew Calvillo until Calvillo “went missing,” the court asked if Juror 70
had any information relative to this case. Juror 70 responded, “No.” The remaining jurors
reasonably could have inferred from this exchange that Calvillo’s disappearance was not, in fact,
related to this case. Finally, at the time the statement was made, none of the jurors knew of the
previous trial on these same charges. Thus, the jurors would not have connected the statement
that Calvillo went missing with facts unknown to them at that time: (1) that Calvillo had
absconded from a previous trial on the same charges, (2) that he was ultimately convicted and
returned to the United States for sentencing, and (3) that he was now being retried on the same
charges.
       Ultimately, the record does not support Calvillo’s claim that the jury was biased by the
two statements made during voir dire. Considering the trial as a whole, we hold these statements
were not so prejudicial as to require reversal. Accordingly, the district court did not err in
denying Calvillo’s motion for mistrial.
                                               III.
                                          CONCLUSION
       We are not at liberty to modify the standard of review. Applying the well-established
standard in this case, we conclude Calvillo has failed to show reversible error based on the
jurors’ statements. Therefore, Calvillo’s judgment of conviction for one count of sexual abuse of
a child and six counts of lewd conduct with a minor is affirmed.
       Judge GUTIERREZ and Judge Pro Tem WALTERS CONCUR.




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