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Filed 6/29/15 P. v. Walker CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

STANLEY WALKER,

Defendant and Appellant.

 A139245

 (Contra Costa County

 Super. Ct. No. 05-130345-2)

Appellant Stanley Walker was convicted, following a jury trial, of second degree 

robbery. On appeal, he contends the trial court erred when it refused to dismiss a 

prospective juror for cause and denied him additional peremptory challenges. This, 

according to appellant, resulted in the seating of an incompetent juror, in violation of his 

state and federal constitutional right to trial by an impartial jury. We shall affirm the 

judgment. 

PROCEDURAL BACKGROUND

Appellant was charged by information with one count of second degree robbery. 

(Pen. Code, §§ 211/212.5, subd. (c).) 

At the conclusion of a jury trial, the jury found appellant guilty as charged. 

On June 18, 2013, the trial court placed appellant on probation for three years. 

On July 17, 2013, appellant filed a notice of appeal. 

FACTUAL BACKGROUND

Aristotle Rivera testified that, on the morning of February 4, 2013, he went to the 

Antioch Skatepark to try to learn how to skateboard. While Rivera was skating alone at 
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the park, appellant and another person, who was smaller than appellant, walked in. After 

making eye contact with them, Rivera got scared and turned away. When he turned to 

look at them again, he saw that the smaller person was going through his backpack, 

which he had left on a bench near the entrance to the park. Rivera said in a loud voice, 

“ ‘Hey that’s my bag,’ ” and appellant, who was standing right next to the other person,

responded, “ ‘I know, I know.’ ”

Rivera, who felt cornered because the two people were between him and the only 

exit from the skate park, said there was nothing in the backpack except food and water. 

When they did not respond, he asked, “ ‘Look, what do you guys want?’ ” The smaller 

person said, “[w]e want what’s in your pockets,” which made Rivera feel even more 

afraid and vulnerable. Rivera then said that he did not have any cash, but that he did have 

a phone in his pocket. The smaller person said, “ ‘Okay, show it.’ ” Rivera understood 

this to mean that they wanted his phone, so he took it out of his pocket and placed it on a 

ledge. He did this because he did not want to get hurt.

Appellant and the smaller person walked toward Rivera, and the smaller person 

picked up his phone. Appellant was holding Rivera’s fleece sweater, which Rivera had 

left on the bench next to his backpack. The smaller person asked Rivera what else he had 

in his pockets and whether he had a wallet. Rivera said he had no cash, but appellant 

said, “ ‘Well, maybe there’ll be something that I can swipe.’ ” Rivera, who believed 

appellant was referring to a credit card, gave his wallet to the smaller person, who, after 

seeing that there was no cash inside, gave it back to Rivera.

Appellant and the smaller person started to walk away. As they were leaving, 

appellant said, “ ‘Oh, a Toyota,’ ” referring to Rivera’s car keys, which had been in his 

sweater. Rivera pleaded with them not to take the car, which belonged to his wife, and 

the smaller person told appellant to give the car keys back to Rivera. Appellant rubbed 

the keys on the inside of his shirt and then dropped them on the bench near Rivera’s bag. 

As the two of them walked away with Rivera’s cell phone, the smaller person said, “ ‘We 

don’t want any problems. Don’t tell anyone.’ ” After they left, Rivera went to a nearby 

community center, where he used the telephone to call the police. 
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About 30 minutes later, police officers drove Rivera to a location where he 

identified appellant as the taller robber. He also identified another person as the smaller 

robber. When Rivera got his phone back, the SIM card was missing and was never 

located. 

Antioch Police Officer Nicholas Ward testified that he brought Rivera to a 

location where three individuals had been detained. A black iPhone 4 was recovered 

from appellant’s front left pants pocket; the SIM card was missing. 

DISCUSSION

Appellant contends the trial court erred when it refused to dismiss a prospective 

juror for cause and denied him additional peremptory challenges, which he asserts 

resulted in the seating of an incompetent juror, in violation of his state and federal 

constitutional right to trial by an impartial jury. 

A. Trial Court Background

During jury voir dire, Prospective Juror L.E. told the trial court that his brother 

had been killed by a neighbor and his grandmother was beaten and raped at age 85. The 

man who killed L.E.’s brother spent 13 months in jail and was released “for time served.” 

The man who attacked his grandmother “got away.” L.E. was not happy with the 

outcome of either incident but, when asked if it would affect his ability to be fair or 

impartial in this case, he responded, “Probably not,” and added that he believed he could 

be impartial.

When the prosecutor subsequently asked L.E. where he would get the law from in 

the case, he said, “From here. [¶] . . . [¶] From what you tell us or what the judge has 

explained to us.” When asked if he would follow the law as the court explained it, L.E. 

said, “As best I can,” later clarifying, “If I understand it properly, yes.” He also 

responded, “Yes. Absolutely,” to the prosecutor’s question as to whether, during 

deliberations, he would feel comfortable sending a note to ask the judge to explain a 

concept he did not understand.

Defense counsel asked L.E. whether what had happened to his brother and 

grandmother was going to be an issue, and L.E. responded, “It shouldn’t be. But I can’t 
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say it won’t be. I was very dissatisfied with the outcome on all of them. The first one, 

the brother was killed. It was a very disappointing jury how they came to that 

conclusion. It still baffles me. Without saying too much about it and—he was shot 

through a door, and they gave the guy 13 months and he walked free. And what 

happened to myself, if anything happens to this guy, his family then come to arrest us, 

which I thought was intimidation on their side.” When counsel asked if that 

dissatisfaction would make him lean toward either the prosecution or the defense, L.E. 

said, “It would probably bias me towards prosecution.” Counsel asked if, by bias, he 

meant that he would be more likely to convict somebody, and L.E. said, “Yes. On the 

other tragedy on my grandmom’s side, the general opinion was it was an illegal alien that 

probably went back to Mexico and will never catch him. Again, very disappointing.” 

When asked if that experience would also lead him to be biased toward the prosecution, 

L.E. said, “No. They just didn’t have anything to work with.” Counsel said, “But the 

situation with your brother, you feel like that makes you favor the prosecution?” L.E. 

responded, “Yeah. I think it does.”

Later, the court asked if either party “wish[ed] to approach to talk about any cause 

challenges.” Defense counsel asked to approach and, after a sidebar conference that was 

not reported, the court excused one juror for cause. Defense counsel then used his first

peremptory challenge to excuse L.E. 

During continued questioning, Juror No. 8 told the court she was robbed at 

gunpoint in 1986, and the perpetrator was never caught. Her home had also been 

burglarized and that person was caught. She did not know the outcome, although she 

heard that the burglar was deported. Juror No. 8’s husband had been convicted of a 

felony when he was a young man, resulting from a fight. The court asked if that incident 

would cause her any concern about her ability to be fair or impartial in this case, and 

Juror No. 8, said, “No.” Juror No. 8 then told the court that she had several close friends 

in law enforcement, although not in Antioch. She further stated, “I thought that I could 

not be fair and impartial, but now that I have heard all this, I understand it better and I 

feel that I can.” 
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After the court excused two more prospective jurors for cause, the prosecutor 

passed on peremptory challenges, and the court said that the defense was out of 

peremptory challenges. Defense counsel asked to approach on cause grounds and the 

court held a sidebar conference, but did not excuse any juror for cause. 

In continued questioning of Juror No. 8, the prosecutor asked if she could be fair 

in this case, to which she responded, “As I said, I can try.” She then affirmed that she 

would base her decision on the facts and the evidence and that she would “hold [the 

prosecutor] to the law that the judge gives . . . , not something else.” 

Defense counsel then asked Juror No. 8 if having been robbed at gunpoint would 

bias her against one side or the other, and if she would be thinking about what had 

happened to her in 1986 when she heard the testimony in this case. She responded, “No.” 

Counsel also asked Juror No. 8 if she had any concern that she might feel empathy

toward someone who “testifies that they are, quote, ‘a victim of robbery.’ ” She 

responded, “No.” 

After the prosecutor passed for cause, defense counsel asked to approach. There 

was another sidebar conference that was not reported, after which the court granted a 

challenge for cause against another juror. 

Subsequently, in a hearing outside of the jury’s presence, defense counsel made a 

record of the challenge for cause against Prospective Juror L.E., which the court had 

denied. Counsel stated that L.E. had indicated that he would not be fair toward the 

defense due to events surrounding his brother’s homicide, which showed at least implied, 

if not actual, bias. Counsel further stated that he had used all of his peremptory 

challenges and requested more, which the court had denied.1 Counsel averred that, had 

he more peremptory challenges, he would have challenged Juror No. 8 “based on her 

 

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The court later stated that defense counsel had exercised 10 peremptory 

challenges. 
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having been a victim of a robbery at gunpoint in 1986.”2The court did not specifically 

discuss either Prospective Juror L.E. or Juror No. 8 during the hearing. 

B. Legal Analysis

The federal and state Constitutions guarantee criminal defendants a fair trial by a 

panel of unbiased, impartial jurors. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, 

§ 16; People v. Black (2014) 58 Cal.4th 912, 916 (Black).) Each party is allowed an 

unlimited number of challenges to prospective jurors for cause, which it must use before 

exercising any peremptory challenges. (Black, at p. 916; Code Civ. Proc., § 226, subd. 

(c).) A party may challenge potential jurors for cause on several grounds, including 

general disqualification, implied bias, or actual bias. (See Code Civ. Proc., § 225, subds. 

(b)(1)(A)-(b)(1)(C).) 

In this case, appellant claims that both L.E. and Juror No. 8 demonstrated actual 

bias, which involves “the existence of a state of mind on the part of the juror in reference 

to the case, or to any of the parties, which will prevent the juror from acting with entire 

impartiality, and without prejudice to the substantial rights of any party.” (Code Civ. 

Proc. § 225, subd. (b)(1)(C).) 

“ ‘ “ ‘Assessing the qualifications of jurors challenged for cause is a matter falling 

within the broad discretion of the trial court. [Citation.] The trial court must determine 

whether the prospective juror will be “unable to faithfully and impartially apply the law 

in the case.” [Citation.] A juror will often give conflicting or confusing answers 

regarding his or her impartiality or capacity to serve, and the trial court must weigh the 

juror’s responses in deciding whether to remove the juror for cause. The trial court’s 

resolution of these factual matters is binding on the appellate court if supported by 

substantial evidence. [Citation.] . . . The United States Supreme Court recently 

 

2 Although it appears from the timing of the reported sidebar conferences that 

defense counsel challenged Juror No. 8 for cause, when counsel later made his record, he 

did not actually state that he had done so. Rather, he said that he would have exercised a 

peremptory challenge against her, had he any left. For purposes of this appeal, we will 

assume, as appellant does, that defense counsel did in fact challenge Juror No. 8 for 

cause. 
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explained: ‘Deference to the trial court is appropriate because it is in a position to assess 

the demeanor of the venire, and of the individuals who compose it, a factor of critical 

importance in assessing the attitude and qualifications of potential jurors.’ (Uttecht v. 

Brown (2007) 551 U.S. 1, 9.)” (People v. Hamilton (2009) 45 Cal.4th 863, 889-890 

(Hamilton); accord, People v. Gonzales (2012) 54 Cal.4th 1234, 1285; People v. Horning

(2004) 34 Cal.4th 871, 896; see also People v. Hillhouse (2002) 27 Cal.4th 469, 489

[“The trial court is present and able to observe the juror itself” and “can judge the 

person’s sincerity and actual state of mind far more reliably than an appellate court 

reviewing only a cold transcript”].) 

In Black, supra, 58 Cal.4th at page 920, the California Supreme Court described

“the correct standard for a defendant to demonstrate prejudice after properly preserving a 

claim that the defense used peremptory challenges to cure a trial court’s erroneous denial 

of one or more for-cause challenges[:] A defendant must show that the error affected his 

right to a fair trial and impartial jury. When a defendant uses peremptory challenges to 

excuse prospective jurors who should have been removed for cause, a defendant’s right to 

an impartial jury is affected only when he exhausts his peremptory challenges and an 

incompetent juror, meaning a juror who should have been removed for cause, sits on the 

jury that decides the case. [Citation.]” 

Here, according to appellant, he was prejudiced because, after the erroneous denial 

of his challenge for cause of biased Prospective Juror L.E., he was forced to use a 

peremptory challenge against L.E. He then exhausted his peremptory challenges and the 

court denied his request for additional peremptory challenges. Then, after the court 

denied his for cause challenge against Juror No. 8, he was unable to use a peremptory 

challenge to remove her, which caused an incompetent juror to serve on his jury. (See 

Black, supra, 58 Cal.4th at p. 920.) We need not decide whether L.E. was actually biased

because we conclude that substantial evidence supports the trial court’s implicit finding 

that Juror No. 8 did not demonstrate actual bias and, therefore, an incompetent juror did 

not sit on appellant’s jury. (See ibid.) 
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While Juror No. 8 acknowledged that she had originally been concerned about her 

ability to be fair and impartial, she stated that she now believed she could be fair and 

affirmed that she would base her decision only on the facts and evidence presented. To 

the extent Juror No. 8’s answers regarding her impartiality were “conflicting or 

confusing,” it was for the trial court to weigh her responses, along with her demeanor and 

attitude, in deciding whether to remove her for cause. (See Hamilton, supra, 45 Cal.4th 

at pp. 889-890.)3 

Because there is substantial evidence to support the trial court’s finding that Juror 

No. 8 did not demonstrate actual bias (see Code Civ. Proc., § 225, subd. (b)(1)(C)), 

appellant was not prejudiced by her presence on the jury that decided his case. (See 

Black, supra, 58 Cal.4th at p. 920; Hamilton, supra, 45 Cal.4th at pp. 889-890.) 

DISPOSITION

The judgment is affirmed. 

 

3 Appellant asserts that Juror No. 8’s answer to the prosecutor’s question regarding 

her ability to be fair—that she could “try”—demonstrated actual bias. In context, we do 

not believe that this statement was particularly equivocal. This case is thus 

distinguishable from a case cited by appellant, People v. Bittaker (1989) 48 Cal.3d 1046, 

1089-1090, overruled on another ground in Black, supra, 58 Cal.4th at page 919, in 

which a prospective juror initially affirmed her inability to be fair and impartial. When 

the prosecutor later attempted to rehabilitate her by asking if she could listen to evidence 

and be a fair and impartial juror, she responded, “ ‘I could try, but I believe it would be 

difficult. . . . [O]ne of the questions I do remember was about listening to gruesome 

testimony. And I think I would have a tendency to have a saturation point perhaps below 

what other people—an anger point, perhaps, or something to that effect. So that I 

wouldn’t be listening wholly to the evidence.’ ” (Bittaker, at p. 1090.) Here, unlike the 

juror in Bittaker, Juror No. 8’s statement that she could try to be fair was part of an 

overall affirmation that she would be able to follow the law and be impartial. 
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_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.