The People v. Salazar-Zavala CA1/3

Filed 9/19/13 P. v. Salazar-Zavala CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A136485 v. JOTMAN SALAZAR-ZAVALA, (Sonoma County Super. Ct. No. SCR602224) Defendant and Appellant.

A jury convicted defendant Jotman Salazar-Zavala of rape upon evidence that defendant had unlawful sexual intercourse with an unconscious woman during a drinking party. (Pen. Code, § 261, subd. (a)(4).) The court sentenced defendant to three years in prison. Defendant contends the trial court erred in denying defense counsel’s request to excuse a prospective juror for cause and thereby forcing defendant, who had exhausted his peremptory challenges, to accept a biased juror. Finding no error, we shall affirm the judgment. Statement of Facts Defendant’s sole argument on appeal concerns the trial court’s decision not to dismiss a prospective juror for cause. The statement of facts is, therefore, limited to the jury selection process. The prospective jurors were informed at the outset of voir dire that the case concerned unlawful sexual intercourse with an unconscious person. Late in the process, Juror No. 1402 and other prospective jurors were called into the jury box after others had been excused. Defendant had exhausted all 10 of his peremptory challenges by that time.

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Juror No. 1402 stated that he was a married man who worked as a concrete truck driver and had served on a civil jury 15 or 20 years previously. He said he knew individuals in the sheriff’s department, including a court bailiff. The court asked the newly seated prospective jurors “if anyone has feelings in this type of case one way or another that would make it difficult or impossible for you to sit and be fair [and] impartial in the case.” Juror No. 1402 raised his hand and the following exchange occurred: “The Court: Tell me your thoughts. [¶] Prospective Juror: I just had a family member sexually harassed, not abused. I don’t know if that would have anything to do with this case or not, but — [¶] The Court: Well, we’ll find out. Now, you say you have a family member sexually harassed? [¶] Prospective Juror: Harassed, that’s correct. [¶] The Court: Okay. Something in the recent past? [¶] Prospective Juror: No, your Honor. [¶] The Court: How long ago? [¶] Prospective Juror: Probably 17 years ago. [¶] The Court: Okay. And when you say ‘sexually harassed,’ what do you mean? [¶] Prospective Juror: By her coworkers attempting to go down her shirt, upper shirt. [¶] The Court: Okay. Who was this person? [¶] Prospective Juror: My wife. [¶] The Court: I see. And so it was an employment setting? [¶] Prospective Juror: Yes, sir. [¶] The Court: I see. And in that regard some of her coworkers were sexually harassing your wife? [¶] Prospective Juror: And others, yes. [¶] The Court: Okay. Now, I’m wondering with that backdrop, were you involved in the case? Was there a case to be involved in? [¶] Prospective Juror: Was I involved? [¶] The Court: Yes. [¶] Prospective Juror: No. It’s probably a good thing I wasn’t. [¶] The Court: I wonder if you had a statement or something like that? [¶] Prospective Juror: No. [¶] The Court: Okay. Do you know if the individuals involved were arrested? [¶] Prospective Juror: No. The reason they weren’t is because . . . she went to court and got papers and hired an attorney, and then she was afraid she’d lose her job. [¶] The Court: Was a lawsuit actually filed? [¶] Prospective Juror: No. [¶] The Court: I see. Well, now, keeping in mind that situation, this is not an employment situation. Can you set that aside in this case and listen to the evidence in this case and make a decision solely on the evidence produced solely in this