Metropolitan News-Enterprise


Wednesday, October 25, 2017


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C.A. Finds New Trial Required in Case Where Juror Wouldn’t Deliberate

Justice Baker Spots Inconsistency in Declaration of Whistleblowing Juror, Insists No Misconduct Occurred; Concurs in Reversal on Other Ground


By a MetNews Staff Writer


The Court of Appeal for this district held yesterday that a new trial should have been granted in a wrongful death case based on the declaration by a juror that another juror made up her mind at an early point on the trial and refused to deliberate, with one justice questioning the reliability of the declaration and concurring in the reversal for a different reason.

Acting Justice Michael Raphael, a Los Angeles Superior Court judge sitting on assignment, wrote the majority opinion, in which Acting Presiding Justice Sandy Kriegler concurred. Justice Lamar Baker wrote a separate opinion.

The opinions were not certified for publication.

The decision reverses a jury verdict in favor of defendant Mark Colby Horwedel, whose car hit a pedestrian in a pre-dawn mishap in Palmdale, killing him. Jurors found by a vote of 11-1 that Horwedel was negligent, but determined 9-3 that the negligence was not a substantial factor in the death.

Juror Misconduct

 The majority said that Los Angeles Superior Court Judge Randy Rhodes erred in discounting the showing of juror misconduct.

The declaration of Juror Maccarone alleges that Juror Goldarreh “stated that as soon as she heard evidence that alcohol and marijuana were found in the Decedent’s system she made up her mind that she would not award anything to the Plaintiffs.” It goes on to assert that she “did not participate in deliberations and simply stated that she would vote for whatever gave the Plaintiffs zero recovery.”

Raphael wrote:

“[B]ased on Juror Maccarone’s declaration, Juror Goldarreh made up her mind before plaintiffs’ case-in-chief had concluded and before deliberations began. Her statements are a prima facie showing of bias and thus demonstrate misconduct. Supporting that showing of bias as well as an intertwined failure to deliberate, Juror Maccarone declared Juror Goldarreh refused to deliberate and said she would vote only for whatever gave plaintiffs zero recovery.”

Baker’s View

Baker—who voted to reverse based on Rhodes’ exclusion of accident evidence—disagreed that there was juror misconduct. He recited the statement that Goldarreh “did not participate in deliberations” and said:

“This sentence, however, is unreliable evidence of a failure to deliberate because—merely two declaration paragraphs later—Juror Maccarone swears to the truth of a fact that demonstrates his assertion of a failure to deliberate is false. Juror Maccarone avers in paragraph 11: ‘Several of the jurors, including [Juror] Goldarreh, [Juror] Becker, and a naval veteran stated that they viewed the law enforcement testimony and the police report as scientific evidence and proof of where the point of impact occurred.’ Perhaps it goes without saying, but discussions among jurors of the testimony at trial and the proof of where the point of impact occurred are, in a word, deliberations.”

Supreme Court Opinion

With respect to prejudgment by the juror, he quoted the California Supreme Court’s 2011 opinion in People v. Allen as saying:

“The Attorney General has cited no case, and we have found none, in which a juror was discharged for prejudgment based solely on comments made during deliberations.”

He commented:

“This case is apparently now the first to so hold, and unwisely so. Jury verdicts are not trivial things to be lightly cast aside because a juror expresses a view in strong terms during deliberations or is unaware that fine distinctions in wording (e.g., ‘I made up my mind defendant was not liable’ versus ‘I couldn’t see how plaintiffs would overcome that evidence’) will be the difference between being thanked for his or her service and being branded guilty of serious misconduct. If today’s holding were the rule, it would unfortunately provide even more incentive for attorneys who lose at trial to run after jurors to see if they will sign declarations with diction they did not draft and consequences they may not comprehend. Without evidence of a failure to deliberate—and there is none, for reasons I have explained—I would not hold Juror Goldarreh engaged in misconduct.”

Raphael Distinguishes Allen

Raphael pointed out that in Allen, a juror remarked during deliberations:

“When the prosecution rested, she didn’t have a case.”

The Supreme Court, holding that the judge improperly dismissed him from the panel,  observed:

“His remark was not an ‘unadorned statement’ that he had conclusively prejudged the case. It did not establish that he had ignored further evidence, argument, instructions, or the views of other jurors.”

Raphael remarked:

Allen does not demonstrate that Juror Goldarreh committed no misconduct. Here, Juror Goldarreh’s statement that ‘she made up her mind’ when evidence showed the decedent’s system had alcohol and marijuana was an “unadorned statement” that she had prejudged the case….Juror No. 11 in Allen deliberated with other jurors and voted undecided after five days of deliberations; in contrast, Juror Goldarreh did not engage in deliberations and decided before them. Based on Juror Maccarone’s unopposed declaration, Juror Goldarreh did not ‘maintain an open mind,’ ‘consider all the evidence,’ nor subject her ‘preliminary opinion to rational and collegial scrutiny before coming to a final determination.’ Given Juror Goldarreh’s refusal to deliberate and prejudgment of the case, the evidence in the record demonstrates serious juror misconduct.”

The case is Cornavaca v. Horwedel,  B276291.

The attorneys on the appeal were R. Rex Parris, Bruce L. Schechter and Jason Fowler of the Parris Law Firm, along with Margaret M. Grignon and Anne M. Grignon of the Grignon Law Firm, for the plaintiffs and appellants and Christopher P. Wesierski and Andres Camacho of Wesierski & Zurek, for Horwedel.


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