Filed 9/19/13 P. v. Salazar-Zavala CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A136485
v.
JOTMAN SALAZAR-ZAVALA,                                                   (Sonoma County
                                                                         Super. Ct. No. SCR602224)
         Defendant and Appellant.


         A jury convicted defendant Jotman Salazar-Zavala of rape upon evidence that
defendant had unlawful sexual intercourse with an unconscious woman during a drinking
party. (Pen. Code, § 261, subd. (a)(4).) The court sentenced defendant to three years in
prison. Defendant contends the trial court erred in denying defense counsel’s request to
excuse a prospective juror for cause and thereby forcing defendant, who had exhausted
his peremptory challenges, to accept a biased juror. Finding no error, we shall affirm the
judgment.
                                                Statement of Facts
         Defendant’s sole argument on appeal concerns the trial court’s decision not to
dismiss a prospective juror for cause. The statement of facts is, therefore, limited to the
jury selection process.
         The prospective jurors were informed at the outset of voir dire that the case
concerned unlawful sexual intercourse with an unconscious person. Late in the process,
Juror No. 1402 and other prospective jurors were called into the jury box after others had
been excused. Defendant had exhausted all 10 of his peremptory challenges by that time.


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       Juror No. 1402 stated that he was a married man who worked as a concrete truck
driver and had served on a civil jury 15 or 20 years previously. He said he knew
individuals in the sheriff’s department, including a court bailiff.
       The court asked the newly seated prospective jurors “if anyone has feelings in this
type of case one way or another that would make it difficult or impossible for you to sit
and be fair [and] impartial in the case.” Juror No. 1402 raised his hand and the following
exchange occurred: “The Court: Tell me your thoughts. [¶] Prospective Juror: I just had a
family member sexually harassed, not abused. I don’t know if that would have anything
to do with this case or not, but — [¶] The Court: Well, we’ll find out. Now, you say you
have a family member sexually harassed? [¶] Prospective Juror: Harassed, that’s correct.
[¶] The Court: Okay. Something in the recent past? [¶] Prospective Juror: No, your
Honor. [¶] The Court: How long ago? [¶] Prospective Juror: Probably 17 years ago.
[¶] The Court: Okay. And when you say ‘sexually harassed,’ what do you mean?
[¶] Prospective Juror: By her coworkers attempting to go down her shirt, upper shirt.
[¶] The Court: Okay. Who was this person? [¶] Prospective Juror: My wife. [¶] The
Court: I see. And so it was an employment setting? [¶] Prospective Juror: Yes, sir.
[¶] The Court: I see. And in that regard some of her coworkers were sexually harassing
your wife? [¶] Prospective Juror: And others, yes. [¶] The Court: Okay. Now, I’m
wondering with that backdrop, were you involved in the case? Was there a case to be
involved in? [¶] Prospective Juror: Was I involved? [¶] The Court: Yes. [¶] Prospective
Juror: No. It’s probably a good thing I wasn’t. [¶] The Court: I wonder if you had a
statement or something like that? [¶] Prospective Juror: No. [¶] The Court: Okay. Do you
know if the individuals involved were arrested? [¶] Prospective Juror: No. The reason
they weren’t is because . . . she went to court and got papers and hired an attorney, and
then she was afraid she’d lose her job. [¶] The Court: Was a lawsuit actually filed?
[¶] Prospective Juror: No. [¶] The Court: I see. Well, now, keeping in mind that situation,
this is not an employment situation. Can you set that aside in this case and listen to the
evidence in this case and make a decision solely on the evidence produced solely in this



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courtroom? Do you think you can do that? [¶] Prospective Juror: I will give it my best
shot, yes. [¶] The Court: I appreciate that.”
       The prosecutor asked Juror No. 1402 if his relationship with law enforcement
officers put defendant at a disadvantage and the juror said “no.” The prosecutor asked
“So . . . you can be fair and impartial towards the defendant at this point?” and defendant
said “yes.”
       Defense counsel then questioned Juror No. 1402. “[Defense counsel]: . . . Good
afternoon once again. Juror No. 1402. [¶] Prospective Juror: I’m popular today.
[¶] [Defense counsel]: You know what, I got some real concerns. [¶] Prospective Juror:
Okay. [¶] [Defense counsel]: And, you know, let me ask you this. If you were sitting here
and had the unfortunate events, have you sitting here where my client is, right?
[¶] Prospective Juror: Right. [¶] [Defense counsel]: Why would I want you as — on my
jury — as a juror on my case? [¶] Prospective Juror: You probably wouldn’t.
[¶] [Defense counsel]: Why is that? [¶] Prospective Juror: Well, if he’s the kind of guy I
said earlier, it wouldn’t work. I would automatically call it guilty. [¶] [Defense counsel]:
And that’s the way you feel right now? [¶] Prospective Juror: No, no. I didn’t say that. If
I said that, that’s what I was thinking then, yes. [¶] [Defense counsel]: Okay. Didn’t you
earlier say that you didn’t feel like you could sit on this jury, that you would not —
[¶] Prospective Juror: Well, I guess. I guess I could. I did say that, yes. [¶] [Defense
counsel]: Why did you say that? [¶] Prospective Juror: Well, because it’s [bringing] me to
the thought of what happened years ago with my wife. [¶] [Defense counsel]: Okay. And
you know what, I don’t mean to raise your blood pressure. [¶] Prospective Juror: That’s
good. I take pills for it. [¶] [Defense counsel]: I’m just trying to get information from you
with regards to the Deputy DA has brought it up, the judge has brought it up. Just trying
to find a fair and impartial jury, trying to remove any bias that we may have in this case
because, you know, I think we all agree that everybody has got some bias in some way,
manner or shape. But with your background, looking at my client right now, is it your
impression that he must have done something, he’s sitting here. [¶] Prospective Juror: I
agree with that, yes. [¶] [Defense counsel]: You agree with that. And so, you know that


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the law says that he is presumed innocent even while sitting at defense table? Do you
understand that? [¶] Prospective Juror: I understand that. [¶] [Defense counsel]: Do you
know what that means? [¶] Prospective Juror: He’s not guilty yet. [¶] [Defense counsel]:
When you say ‘not guilty yet,’ it kind of — it raises a red flag to me too. So are you
saying that it’s your belief that, you know, he’s not innocent at this point. He is guilty.
You just want to hear the evidence that’s going to convict him? Is that fair?
[¶] Prospective Juror: But I’m not saying he’s guilty, no. Like, I’d like to hear the
evidence, yes. [¶] [Defense counsel]: Would you like to sit on this panel and hear this
case? [¶] Prospective Juror: If it paid better. [¶] [Defense counsel]: Do you believe that
it’s going to be difficult for you . . . to hear this case? [¶] Prospective Juror: It could be.
[¶] [Defense counsel]: Okay. It could be. And what do you mean by ‘It could be’?
[¶] Prospective Juror: Like anything else, I guess. [¶] [Defense counsel]: Do you believe
that by listening to this case you may get flashbacks as to what your wife went through in
her harassment case? [¶] Prospective Juror: That’s what I brought up earlier, yes. That’s
why I said what I said. [¶] [Defense counsel]: Okay. And — [¶] Prospective Juror: I said
it could possibly, yes. [¶] [Defense counsel]: And you bring that up because you want us
to know that you may not be able to be impartial during the course of this case?
[¶] Prospective Juror: Correct. [¶] [Defense counsel]: You just don’t know that yet?
[¶] Prospective Juror: That’s right.”
       The court asked Juror No. 1402: “[W]ith all of the questions that I’ve asked of you
and those of counsel, I’m wondering if you would make a commitment to us if you’re
going to keep an open mind throughout this case as you look through the evidence
produced in the courtroom, make a decision based solely on the evidence presented here
in the courtroom. Can you do that?” The juror replied, “Yes, sir.”
       Defense counsel asked to remove Juror No. 1402 for cause. Counsel said the
prospective juror “kept flip/flopping” and “doesn’t know in the end whether he can keep
an open mind.” The prosecutor opposed the request, saying she believed the juror “could
be fair and impartial.” The court denied the challenge for cause. The court stated: “It
appears to me that as with all individuals who grapple with the idea of having other


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things occur in their life, and he seems to have made a commitment to counsel and the
court that he will keep an open mind and make a decision in this case based solely on the
evidence.” Just before the jury was sworn, defense counsel renewed his objection to the
jury as constituted, saying he believed Juror No. 1402 was biased.
                                         Discussion
       Defendant contends the trial court erred in denying his challenge for cause to a
prospective juror. The contention is preserved for appeal because defendant objected to
the prospective juror during voir dire, had no remaining peremptory challenges to remove
the juror in question, and objected to the jury ultimately selected. (People v. Souza (2012)
54 Cal.4th 90, 130.)
       The law permits a prospective juror to be challenged for cause on limited grounds.
Among those grounds is actual bias, 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.” (Code of Civ. Proc., § 225, subd. (b)(1)(C).)
       “ ‘In general, the qualification of jurors challenged for cause are “matters within
the wide discretion of the trial court, seldom disturbed on appeal.’ ” (People v. Thomas
(2011) 51 Cal.4th 449, 470.) “Jurors commonly supply conflicting or equivocal responses
to questions directed at their potential bias or incapacity to serve. When such conflicting
or equivocal answers are given, the trial court, through its observation of the juror’s
demeanor as well as through its evaluation of the juror’s verbal responses, is best suited
to reach a conclusion regarding the juror’s actual state of mind.” (People v. Martinez
(2009) 47 Cal.4th 399, 426.) “ ‘[A] trial judge who observes and speaks with a
prospective 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.’ ” (Ibid.) Accordingly, “[t]he trial
court’s resolution of conflicts on the question of juror bias is binding on the reviewing
court if supported by substantial evidence.” (Id. at p. 427.)



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       Substantial evidence supports the trial court’s finding that the workplace sexual
harassment of Juror No. 1402’s wife over a decade previously would not impair his
ability to be a fair and impartial juror in defendant’s rape trial. Initially, the juror raised
his hand when the court asked the panel if anyone had feelings that may make
impartiality difficult. When asked if he could put aside his wife’s experience and “make a
decision based solely on the evidence,” said “I will give it my best shot, yes.” Defendant
argues that the juror’s reply is less than an unqualified statement of impartiality but the
juror had an informal way of talking. The trial court understood the reply as a
commitment to fairness, stating appreciation for the juror’s reply. Moreover, the juror
later made “a commitment” to keep an open mind and to “make a decision based solely
on the evidence” presented in court. While the juror told defense counsel that defendant’s
presence in court gave the impression that defendant “must have done something,” the
juror immediately clarified that he was not saying defendant was guilty and would “like
to hear the evidence.” As noted above, “[j]urors commonly supply conflicting or
equivocal responses to questions directed at their potential bias or incapacity to serve.”
(People v. Martinez, supra, 47 Cal.4th at p. 426.) The trial court is in the best position to
weigh a juror’s responses and “to reach a conclusion regarding the juror’s actual state of
mind.” (Ibid.) We find no basis to overturn the trial court’s conclusion in this case that
Juror No. 1402 could serve with impartiality.




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                                 Disposition
     The judgment is affirmed.




                                         _________________________
                                         Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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