Metropolitan News-Enterprise


Wednesday, August 2, 2006


Page 3


C.A. Orders New Trial Because of Juror’s Hearing Impairment


By a MetNews Staff Writer


A Northern California massage therapist convicted of sexually assaulting a client was granted a new trial yesterday because a hearing-impaired juror failed to tell the court during trial that she had missed hearing part of the testimony.

Sixth District Presiding Justice Conrad Rushing, writing for the court, said the juror committed prejudicial misconduct by failing to abide by the judge’s instructions, given when the juror revealed the impairment during voir dire, that she raise her hand anytime she was unable to hear.

The defendant, Joe Luis Rubio, was found guilty by the Santa Cruz Superior Court jury of two counts of felony sexual battery, one count of unlawful possession of testosterone, and one misdemeanor count of indecent exposure. The lead witness, a longtime client, testified that the defendant exposed himself, placed the witness’ hands on his penis while moving her hand back and forth, then got on top of her, pulled her underpants and a sheet down and straddled her.

Rubio was sentenced to five years in prison. After the trial, however, his attorney moved for a new trial based on the juror’s response to a post-trial questionnaire, in which she indicated that she disliked “[h]aving to strain to hear and not hearing everything.”

At the hearing on the motion, the juror testified that an assisted hearing device provided by the court was “almost useless” and that she had in fact missed some of the testimony and argument. She acknowledged having told Judge John S. Salazar she would raise her hand if that occurred, but said she had been too embarrassed to do so.

Salazar found that the juror did not miss a “significant” portion of the testimony and denied the motion.

Rushing, however, said the defendant had been denied a fair trial.

“Given Juror No. 11’s proven hearing impairment, coupled with her statement that she could not hear the defense attorney numerous times during the trial and missed ‘a lot of testimony,’ she did not serve as a competent juror in defendant’s trial,” Rushing wrote. “In addition, Juror No. 11’s misconduct in failing to notify the court when she could not hear, materially affected defendant’s substantial rights.”

The case is People v. Rubio, H028213.


Copyright 2006, Metropolitan News Company