Metropolitan News-Enterprise


Wednesday, November 28, 2012


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Court: Juror’s Mistake Did Not Require Disqualification

Juror Properly Allowed to Serve Once It Became Clear He Did Not Know Victim, Panel Says


By JACKIE FUCHS, Staff Writer


A juror who mistakenly thought he recognized a crime victim from a photograph in the prosecution’s exhibits was properly allowed to remain on the jury, the Fourth District Court of Appeal ruled yesterday.

Div. One found unanimously that San Diego Superior Court Judge Roger W.

Krauel did not abuse his discretion when he permitted the man identified only as Juror No. 6 to remain on the jury despite his belief that the victim was the grandmother of a friend.

Defendant Ramon Flugencio Gonzalez was accused of multiple sexual offenses against an unconscious homeless woman in San Diego.

According to the panel, at the close of the prosecution’s case, but before the defense had called a witness, Juror No. 6 told Krauel that he thought he recognized the victim and didn’t think he could remain impartial. The judge asked the juror to remain where he was and listen to the testimony of the defense’s first witness, indicating that they would discuss the matter later.

After the other jurors had been dismissed, the Juror No. 6 told Krauel that he thought he had seen the photograph posted by a friend on a Facebook page with a caption that read, in part, “Nana.”

The prosecutor, speaking to the judge outside the presence of the juror, said that the victim had a son who lived in San Diego, but that the son was in prison. More importantly, he said, the photograph in question had never been released to the public.

Krauel called Juror No. 6 back into the courtroom and explained that the photograph had not been released and that it was unlikely that the person was the same woman the juror had seen on Facebook.

The juror responded, “Okay. That makes everything different.”

Defense counsel asked the juror for the name of his friend, which the juror provided. The judge told the juror that they would look into it and revisit the matter the following day if they had made an error, but that he could go home thinking that the victim was a different person.

The issue was never raised again during the trial.

The panel rejected Gonzalez’ contention that Krauel should have dismissed Juror No. 6 for bias.

Writing for the panel, Justice Cynthia Aaron said:

“[W]e may reasonably infer both that Juror No. 6 was mistaken in his belief that he knew a relative of the victim, and also that Juror No. 6 understood that he had been mistaken in his belief that he knew a relative of the victim. We may further infer that any potential bias that Juror No. 6 may have harbored was dispelled once Juror No. 6 was disabused of the notion that his friend was related to the victim.”

The panel did, however, agree with Gonzelez’s contention that his two separate convictions for oral copulation of an unconscious person and for oral copulation of an intoxicated person under Penal Code Sec.288a, should be consolidated into a single conviction.

In a 2-1 decision the panel agreed, finding that Gonzalez could not be convicted of two counts of the same offense based on a single act, Aaron said:

“The fact that the victim in this case was unconscious as a result of her intoxication supports the conclusion that she was subjected to but a single crime of unlawful oral copulation under circumstances in which she was unable to give consent.”

Presiding Justice Patricia Benke dissented from that part of the opinion, finding that because the two provisions of Sec. 288a under which Gonzalez was convicted “are discrete substantive offenses with distinct elements and separate punishments, neither is the lesser included offense of the other.”

She added:

“The majority has created a new sentencing rule and given the trial courts no guidance with respect to how they should unravel the inevitable conflicts they will face in applying it… I would not take the drastic, unwarranted, and unlawful step of striking Gonzalez’s conviction”

Justice Richard McIntyre concurred in the majority opinion.

The case is People v. Gonzalez, 12 S.O.S. 6013.


Copyright 2012, Metropolitan News Company