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

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

Cr. 13605.

Decided: September 28, 1983

Jeffrey S. Wasserman, Manhattan Beach, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Jay M. Bloom and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

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, denied Diaz' ability to meaningfully inquire 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, we find the nondisclosure was prejudicial and reverse the judgment.

Factual and Procedural Background

Tony Lopez was attacked by Steve Loronia and two other men, Ralph Cornejo and Diaz.   Diaz was seen unsnapping a black case attached to his belt and making repeated thrusting motions at Lopez;  however, the witness could not tell whether Diaz was holding a knife.   Lopez received knife wounds to his arm, chest, and abdomen, including puncture wounds to his lung and liver.   Diaz was arrested wearing a knife and sheath on his belt.

During the second day of jury selection, the trial court told 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?  [¶] 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 defense case, Wolski told court personnel she had been attacked at knife point during a rape attempt, leaving a scar on her chin and had stabbed the 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 acknowledged, when the judge asked her regarding similar incidents, it never occurred to her her assault 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.


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 not on the lack of any evidence supporting her ability to deliberate impartially, but upon 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.)   Indeed, “[t]he 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.   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 jury.”  (People v. Diaz, supra, 105 Cal.App.2d 690, 697, 234 P.2d 300.)

Here, armed with three remaining peremptory challenges after questioning Wolski at the end of voir dire, defense counsel was prevented from fairly evaluating whether to use one of his remaining peremptory challenges to remove her from the panel because she had been a victim of a felonious knife assault, the same crime for which she was now being evaluated to sit in judgment.   Where the concealed information is so directly related to potential juror bias, we hold the nondisclosure is prejudicial per se.  “ ‘The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution.   Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside.’ ”  (People v. Wheeler, 22 Cal.3d 258, 283, 148 Cal.Rptr. 890, 583 P.2d 748, quoting People v. Riggins, 159 Cal. 113, 120, 112 P. 862;  see also People v. Williams, supra, 29 Cal.3d 392, 412, 174 Cal.Rptr. 317, 628 P.2d 869.)   Moreover, Diaz cannot be deprived of this right merely because the trial court miscalculated by not selecting alternate jurors.

Disposition: 4

Judgment reversed.

I dissent.

The majority holds that a juror's failure to “correctly respond to voir dire questions having a substantial likelihood to disclose facts showing a strong potential for juror bias, denied [appellant's] ability to meaningfully inquire into an area of potential bias upon which to base a challenge ․”  Although the trial judge questioned and observed the juror and heard and observed witnesses regarding a mid-trial request to remove the juror, this court reversed the conviction “[b]ecause [of] the concealment of the fact the juror had been a victim of the same crime with which [appellant] was charged ․”  This conclusion is not supported by the facts nor any case authority directly related to the facts before this court.

It is clear, as stated by the majority, that a juror who had been a victim of an attempted rape in which the assailant held a knife to her throat and slightly cut her chin in 1968 did not reveal such event during her voir dire examination.   At trial this juror's nondisclosure was brought to the attention of the court.   During the court's and counsels' questioning of the juror she stated:

“It was back in 1968, and I was accosted or whatever, assaulted, whatever.   And a man pushed me up against a building and it was attempted rape.   He had a knife at me.   I—I guess you would say I stabbed him.   I—he let it go, and I pushed against him and the knife did enter.   I didn't grab the knife in my hand.   He had it in his hand, so I don't know how you would—how you would define that.”

“It was in his shoulder, and I don't know to what extent.   I have no idea what happened to him.   I don't know.”

“In fact, when—when the Judge asked me if something about a similar incident, I didn't even think of it as similar.   It never even occurred to me as being similar.”

“MR. WINGFIELD:  In other words, the incident that occurred to you, you consider that a rape as opposed to assault with a deadly weapon?

“THE WITNESS:  I consider it rape.

“MR. WINGFIELD:  You didn't really see or feel that that was similar enough to the present charges in this case for you to really make a response;  is that correct?

“THE WITNESS:  I made no connection.”

In several places in the examination, the juror said her prior experience would not affect or bias her decision.   The juror clearly stated she did not consider the 1968 event to be an assault, but rather a rape.   In her mind there was no connection between her experience as a victim of rape and appellant's alleged act of assault with a deadly weapon.

The trial court saw and heard all the examination of the juror and several court attaches who testified regarding the juror's state of mind.   The trial court concluded the juror should not be removed from the panel.   The majority here, in reliance solely upon the transcript, concludes the nondisclosure is so prejudicial that the conviction must be reversed.

If the trial court's determination is ignored, the ruling in this case creates the potential for reversal of every jury verdict where a seated juror does not reveal a relevant background fact during voir dire.   The shortcoming of this holding is that every conviction stands in jeopardy based upon juror revelations both during and after trial.   Such a result may well lead to extensive post-trial interviews or background investigations of large numbers of jurors.

The majority cite cases which require fair voir dire, open questioning of prospective jurors, open use of peremptory challenges, and defendants' rights to a fair and impartial jury.   Nothing in this proceeding suggests appellant was deprived of any of these rights.   The jury's deliberations were lengthy.   The jury determined appellant did not personally inflict great bodily injury under Penal Code section 12022.7.

Appellant's due process rights were not violated by an unintentional failure of a juror to disclose a prior involvement as a victim of a criminal act which might lead to a peremptory challenge.   Perfect voir dire is rarely attained.   Since People v. Williams, 29 Cal.3d 392, 174 Cal.Rptr. 317, 628 P.2d 869, counsel may examine very broadly in voir dire.   The result here may now encourage counsel to examine very narrowly or not at all during voir dire if given the opportunity to have a verdict reversed based on non-disclosure.

The facts here do not require a reversal.   The person in the best position to evaluate the request to remove the juror was the trial court judge.   Deference should be given to his decision and the conviction should be affirmed.


1.   All statutory references are to the Penal Code.

2.   No alternate jurors had been selected.

3.   Diaz did not exhaust his peremptory challenges.

4.   In light of our holding, we do not address Diaz' remaining contentions.

WORK, Associate Justice.

STANIFORTH, Acting P.J., concurs.