Metropolitan News-Enterprise


Friday, September 20, 2013


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S.C. Orders Depublication of Juror Misconduct Ruling


By a MetNews Staff Writer


The California Supreme Court has declined to review a Fifth District Court of Appeal ruling granting a new trial in a 24-year-old murder case, but has depublished the court’s opinion.

The justices, at their weekly conference in San Francisco Wednesday, voted 6-1 not to hear prosecutors’ bid to reinstate Michael Pizarro’s conviction. Only Justice Joyce L. Kennard voted to grant review, but no justice voted to allow the ruling to remain precedent.

The panel held in its May 21 decision that a juror who read the Court of Appeal’s prior opinion in the litigation committed misconduct requiring a third reversal.

“Despite the good efforts of the trial judge and the attorneys to conduct the trial in accordance with the rules of evidence, procedure, and substantive law, the juror’s misconduct in disobeying the court’s repeated admonitions and in investigating the case on his own made a mockery of the trial process and prejudiced defendant,” Justice Stephen Kane wrote.

“We view that juror’s behavior in this case as criminal,” he said, explaining in a footnote that a statute making it a felony for a juror to “willfully and corruptly” receive information outside the regular course of proceedings may have been violated, although the juror was apparently not prosecuted.

Depublication of Court of Appeal opinions by the Supreme Court is rare. The Judicial Council, in its annual Court Statistics Report released Tuesday, said it was granted only once in Fiscal Year 2011-2012.

Pizarro is serving a life sentence without the possibility of parole for the rape-murder of his half-sister, Amber Barfield, who was 13.

Pizarro, who was around 20 at the time of the 1989 murder, was the first Madera County defendant to have DNA evidence admitted against him at trial.

He was convicted in part based on testimony by his wife, who said she saw the child walking toward Pizarro, who was in a field near Road 200 in the rural community of North Fork.

She said that her husband was intoxicated and under the influence of marijuana. She said she never saw the child and her husband together because it was dark, but she said she heard a “muffled scream” and fled. About six hours later, authorities found the girl’s body in the field.

In People v. Pizarro (1992) 10 Cal.App.4th 57, which appears have been the third published DNA case in California, the Court of Appeal said the trial judge failed to perform his “gatekeeper” function with respect to the scientific evidence.

The case was sent back for a full evidentiary hearing as to whether such evidence was generally accepted in the relevant scientific community, as required by People v. Kelly (1976) 17 Cal.3d 24.

While prosecutors “presented a strong circumstantial case,” Presiding Justice James Ardaiz, now retired, wrote in Pizarro I, it was the DNA evidence that “sealed his fate.” The prosecution, he said, should have been required to demonstrate through at least one impartial witness that the genetic fingerprinting procedures were sound.

Madera Superior Court Judge Edward Moffat found that the Kelly requirement had been met, but on the defendant’s second appeal, People v. Pizarro (2003) 110 Cal.App.4th 530, Ardaiz opined that reversal was again required because evidence regarding the likelihood of a DNA match for the defendant in the Hispanic population was presented, even though there was no evidence Pizarro was Hispanic.

It was, Ardaiz reasoned, as if “the sketch artist sits with the defendant, sketches him as the perpetrator, and then the prosecution introduces the sketch at trial as evidence that the defendant looks exactly like the perpetrator.”

He reiterated his comment in Pizarro I, that “it is difficult to imagine how the jury could have reached other than a guilty verdict when presented with the evidence that the likelihood of finding someone else with a DNA profile in the non-Hispanic Caucasian population was 1 in 10 million and 1 in 250,000 in the Hispanic population.”

The problem with the latest conviction, Kane explained, was that the juror, who was identified only by number, read Pizarro II, and admitted at a hearing on the defendant’s motion for new trial that he referred to it throughout the trial because it created a “timeline” that helped him understand the evidence.

The justice noted that the juror learned a great deal from the opinion that was not presented as evidence at the retrial, including the verdict and sentence previously imposed, testimony given by defendant at the first trial, and the appellate court’s characterization of the strength of the prosecution’s circumstantial case, as well as the DNA evidence that led to the reversal.

The case is People v. Pizarro, 216 Cal.App.4th 658.

In other conference action, the Court of Appeal declined to depublish the opinion of this district’s Court of Appeal, Div. Five, in National Football League v. Fireman’s Fund Insurance Company, 216 Cal.App.4th 902.

The panel in that case affirmed an order staying proceedings in the Los Angeles Superior Court brought by the National Football League against its insurers in connection with injury claims by 73 former players.


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