SEE CONCURRING OPINION

Filed 3/1/24 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

ARMAH VICTOR JOHNSON,

Defendant and Respondent.

F085013

(Super. Ct. No. DF014632A)

OPINION

APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, 

Judge.

Cynthia J. Zimmer, District Attorney, and Anthony Yim, Deputy District 

Attorney, for Plaintiff and Appellant.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant 

and Respondent.

-ooOooArmah Victor Johnson (defendant) was convicted by jury of multiple felony 

offenses. After the jury was discharged, it was discovered that something unusual had 

occurred during jury selection. Following a screening process involving the use of 

questionnaires, those remaining in the jury pool were randomly assigned numbers 

corresponding to locations on a seating chart. The individual who later served as the 
2.

foreperson originally sat in seat 17, but he reportedly should have started out in a higher

numbered seat. The prospective juror who should have initially occupied seat 17 also sat 

in the wrong place. The record does not explain exactly how or why this happened, but 

there is no dispute it was accidental.

The parties had full opportunity to voir dire both individuals, but apparently 

neither were singled out for questioning by counsel. However, to the extent counsel may 

have relied on their questionnaires, they could have mistaken one person for the other. 

Voir dire concluded with none of the remaining venire being challenged for cause. As a 

result of subsequent peremptory challenges, the person who had mistakenly sat in seat 17 

was moved down to seat 10 and thus became part of the 12-person jury.

Upon learning of the above-described circumstances, defendant moved for a new 

trial on grounds of juror misconduct. The trial court found there was no misconduct. 

Nevertheless, it felt “forced” to grant the motion in light of defendant’s averred “right to 

know exactly who the jurors are.” Prejudice was not discussed in the ruling, and by all 

indications the trial court believed a structural error had occurred. The People appealed.

As we explain, there is no constitutional right “to know exactly who the jurors 

are.” On the contrary, “even an anonymous jury is constitutional when warranted by the 

facts, and any prejudice in the ability to select a jury is not assumed but must be 

established, principally by analysis of the voir dire.” (People v. Goodwin (1997) 59 

Cal.App.4th 1084, 1092.) Defendant was convicted by 12 sworn jurors who underwent 

an extensive initial screening process for bias; were observable for body language and 

other nonverbal indicators; were subject to questioning by counsel; were passed over for 

cause; and were not peremptorily challenged. The seating error should be scrutinized for 

prejudice, but it does not constitute a structural defect in the trial process.

“Usually, when a trial court applies the incorrect legal standard in exercising its 

discretion, the appropriate disposition is to remand for the court to apply the proper 
3.

standard.” (Doe v. Atkinson (2023) 96 Cal.App.5th 667, 679.) Such is the case here. 

The cause will be remanded for the motion to be decided based on the applicable law.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant has been serving a life sentence in prison since 2001. In December 

2019, he was charged with committing multiple felonies while incarcerated. For reasons 

not relevant to this appeal, the case did not go to trial until June 2022.

Defendant was tried before a jury on charges of battery upon a nonprisoner (Pen. 

Code, § 4501.5), resisting an executive officer (id., § 69), and possession of a controlled 

substance (heroin) in a penal institution (id., § 4573.6, subd. (a)). The jury returned 

guilty verdicts on all counts. Defendant was further alleged to have suffered a prior strike 

conviction (second degree murder) for purposes of the “Three Strikes” law (§§ 667, 

subds. (b)–(i), 1170.12). The strike allegation was found true in a bifurcated bench trial.

Jury Selection

Jury selection began on June 29, 2022, with a panel of 35 prospective jurors. The 

trial court initially said only 33 people were available, but the clerk’s transcript and 

subsequent remarks by the judge confirm the initial panel comprised 35 individuals. The 

panel members filled out two questionnaires: a two-page version addressing hardship 

and a 10-page version aimed at detecting grounds for removal for cause. The attorneys 

were told they could request individual questioning of any prospective juror, outside the 

presence of other panel members, based on the written responses.

What we will call “round one” of the preliminary screening process began with a 

hardship excusal based solely upon the responses to a questionnaire. Thus, the panel 

immediately shrank from 35 to 34 prospective jurors. Next, the trial court individually 

questioned 14 panel members for potential hardship and one panel member for potential 

bias. The attorneys were permitted to ask additional questions and occasionally did so. 

This resulted in eight more excusals for hardship and one for cause. At the end of the 

day, the trial court noted, “[W]e lost ten [panel members].”
4.

Round one continued the following morning, June 30, 2022, with further 

preliminary screening of the now 25-person venire. The trial court proposed a stipulation 

from counsel to remove three people for cause based on their questionnaires. The 

prosecutor agreed to removing all three, but defense counsel elected to question two of 

them. In the end, one was removed by stipulation, another was removed for cause 

without objection, and the third person remained on the panel over the prosecutor’s 

objection.

The trial court decided to individually question eight more people, three of whom 

had also been questioned the previous day. The attorneys were asked, “[W]as there 

anyone else you wanted to talk to individually?” No requests were made. The further 

examinations resulted in one more panel member being removed for cause.

At the conclusion of round one, the trial court noted they had “lost 13 overall” and 

announced, “We only have 22 of you left.” The court then explained it would be 

“bringing over another panel to go through the same [screening] process.” Next, all but 

two of the remaining panel members were excused until later in the afternoon. The trial 

court spoke to both individuals about their scheduling concerns, and it excused one of 

them for hardship. This brought the total number of hardship excusals to 10, leaving only 

21 people on the panel after accounting for the four removed for cause.

All told, 23 of the original 35 panel members appeared individually before the trial 

court and counsel for questioning or to be informed of their release based on 

questionnaire responses. Another panel member was excused for hardship before that 

process began. The record does not indicate whether the eventual foreperson, i.e., the socalled “wrongly empaneled juror,” was among the 11 people who were not individually 

questioned in round one.1

1According to a declaration by the prosecutor, which was filed with the People’s opening 

brief, neither the eventual foreperson nor the prospective juror who should have sat in seat 17 

were part of the original 35-person panel. This is based on their alleged juror badge numbers, 
5.

What we will call “round two” of the screening process began with a fresh 20-

person panel filling out the same two-page and 10-page questionnaires. Upon review of 

the written responses, the trial court excused three people for hardship without further 

inquiry. Next, the court individually questioned nine or 10 panel members (the record is 

somewhat unclear) regarding potential hardship and/or bias. As before, the attorneys 

were permitted to ask additional questions. This process resulted in a fourth excusal for 

hardship and one prospective juror being removed for cause.

Following a lunch recess, round two continued with the individual questioning of 

seven panel members, two of whom were returning for a second time to provide updates 

on potential hardships. Of those seven prospective jurors, two were removed for cause.

Another person in this group admitted partiality toward the prosecution based on prior 

employment with the California Department of Corrections and Rehabilitation (CDCR).

The trial court expressed surprise when defense counsel elected not to challenge this 

person for cause. The prosecutor, who had been willing to concede such a challenge, 

made his own motion “in the interest of justice.” Given the defense’s position, the trial 

court denied the motion.

By the end of round two, the second panel had been whittled down to 13 

prospective jurors. The two panels were then combined, resulting in a 34-person venire.2 

which would indicate both were part of the second panel of prospective jurors, and that the 

eventual foreperson was twice spoken to about a potential hardship during the preliminary 

screening process. However, the information is hearsay and also constitutes evidence outside the 

record on appeal. Although we have explained the allegations, we view them as unsubstantiated 

and do not consider them in analyzing the dispositive issues. (See People v. Young (1978) 85 

Cal.App.3d 594, 608 [“an appellate court cannot properly consider assertions of fact in an 

appellate brief when the facts are not of record”].)

2At the end of round two, the trial court remarked, “We have 35 total. ... [¶] ... I show 35 

[remaining venirepersons].” Later, while addressing the entire group of remaining prospective 

jurors, the court said, “There’s 33 of you out here ....” These appear to have been inadvertent 

misstatements. The clerk’s transcript and reporter’s transcript show that out of the combined 55 

prospective jurors among both panels (35 + 20 = 55), 14 were excused for hardship and seven 
6.

As explained, roughly 70 percent of those prospective jurors were individually 

questioned during rounds one and two. The attorneys were twice advised they could 

request further individual examinations based on the questionnaire responses, but neither 

side pursued that option.

According to the record, court staff “let jury services [know] who was excused,”

and “jury services” proceeded to create a “randomized list” used to assign each 

prospective juror to a space on a sequentially numbered seating chart. From that point 

on, all venirepersons were addressed by their seat number (e.g., “Juror #17”) rather than 

by first and last names. This may explain, at least in part, why the seating mishap went 

undiscovered for so long.

After everyone appeared to have taken their assigned seats, the trial court began its 

“general voir dire” of the whole group. The judge peppered the venire with questions, 

most of which were directed to specific individuals. Some questions called for the 

raising of hands and/or a voluntary response from anyone. Through this process

(documented across 32 pages of the reporter’s transcript), the trial court managed to elicit 

verbal responses from all 34 panel members. The person occupying seat 17 was asked 

how he would interact with fellow jurors if placed on the jury, and he answered:

“I would talk with them, give them my reasonings, and then see where they 

are coming from and try to get—just understand both sides, like, have them 

understand my side and understand their side. Just try to come up with 

their reasons.”

Voir dire continued with questioning by defense counsel. The trial court had 

previously said each side would have 15 to 30 minutes depending on the venire’s level of 

engagement and whether counsel was eliciting “new information” or a repetition of “the 

things they [had already stated in] their questionnaires” or prior answers to the judge’s 

were removed for cause (55 - 21=34). All 34 panel members responded to questions in a 

subsequent stage of voir dire, and nothing indicates that a 35th seat was ever occupied.
7.

questions. Defense counsel was brief, choosing to individually question only “Juror 

#11,” which the record indicates was the CDCR employee who had previously admitted 

leanings in favor of the People. The attorney also lectured the panel on basic legal 

concepts, e.g., reasonable doubt and the presumption of innocence.

The prosecutor’s voir dire was not much longer than defense counsel’s, but he 

utilized the time by actually questioning the panel. Responses were elicited from the 

people in seats 2, 10, 12, 13, 14, 15, 19, 25, 26, and 31. Neither the prosecutor nor 

defense counsel asked any questions of the eventual foreperson in seat 17.

Voir dire ended with defense counsel and the prosecutor both passing for cause.

Only then was the panel informed that those occupying seats 1 through 12 following the 

exercise of peremptory challenges would serve as jurors. Although not explained to the 

panel in so many words, the trial court used a variation of what is colloquially known as 

the “six-pack” method. (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2023) 

§ 29.15, p. 841.)

The traditional six-pack method involves 18 prospective jurors at a time; 12 are 

seated in the jury box “and the remaining six are seated in temporary chairs in front of the 

jury box.” (Cal. Criminal Law: Procedure and Practice, supra, § 29.15, p. 841.) The 

group of 18 is questioned prior to the exercise of challenges. If someone in the jury box 

is later challenged and excused, “they are immediately replaced by the prospective jurors 

in the six temporary seats, in the sequence they are seated. No additional questioning is 

permitted.” (Ibid.) If challenges continue to the point where all six temporary seats are 

vacated, the clerk calls six additional venirepersons to fill those seats. The six 

replacements are then questioned by the court and counsel before any further challenges 

are made. The process continues until both sides accept the jury as constituted by the 12 

persons seated in the jury box. (Ibid.)

Here, the trial court modified the traditional method by predetermining the starting 

positions of all 34 panel members and questioning them as a group. Whatever variation 
8.

is used, the six-pack method allows attorneys to be more strategic with their peremptory 

challenges since they know in advance which panel members will replace those in the 

jury box who are excused. “The disadvantage is that it often results in less thorough and 

individualized voir dire.” (Cal. Criminal Law: Procedure and Practice, supra, § 29.15, p. 

841.)

The prospective juror who originally sat in seat 17 was moved to seat 10 after the 

People exercised their third peremptory challenge. At that point defense counsel had 

used two peremptory challenges: the first against the CDCR employee who he had 

questioned during voir dire, and the second against a person originally located in seat 13.

After using its third peremptory challenge to excuse the original occupant of seat 8, the 

defense stated its acceptance of the jury as then constituted by those in seats 1 through 

12. The People used three more peremptory challenges, and the defense then chose to 

remove the person who had originally occupied seat 21. The defense had six peremptory 

challenges remaining when both sides accepted the jury.

Discovery of the Seating Mistake

Although the jury was sworn on June 30, 2022, opening statements and the 

presentation of evidence did not occur until July 5, 2022. Trial continued on July 6, 

2022, with closing arguments and submission of the cause. The jury deliberated for 

approximately 30 minutes before reaching guilty verdicts on all counts.3 The verdicts 

were recorded, and the jurors were excused that day.

The record contains unverified statements alleging the seating mistake was 

discovered on the date the jury was discharged. The attorneys reportedly met with the 

trial judge the next day, July 7, 2022, at which time further details were revealed. The 

3The clerk’s transcript indicates the jury retired to deliberate at 10:58 a.m. and returned 

with a verdict at 11:47 a.m. However, the record contains a note from the foreperson to the trial 

court showing the jury had reached its decision by 11:30 a.m.
9.

following summary was later provided by the trial judge at the eventual hearing on 

defendant’s motion for new trial:

“During jury selection, my bailiff sat or called in randomly the person that 

should have been on the jury which was a [man with the initials M.B.]. At 

the end of the trial, ... we found that a [man with the initials J.H.] actually 

took that seat, and [M.B. took J.H.’s seat]. [¶] They simply got mixed up. 

We found that out when [J.H.] went to the jury services at the end of the 

trial to get proof for his employer that he had sat as a juror and was told he 

had been released.... So instead of [M.B.] ... sitting as a juror, [J.H.], [who 

has a very similar sounding last name], sat as a juror.”

Motion For New Trial

The trial court apparently set a one-month deadline for the filing of a motion for 

new trial. According to the transcript from a hearing on August 9, 2022, defense counsel 

failed to meet the deadline due to a medical issue. The trial court scheduled sentencing 

for September 20, 2022, but evidently gave the defense additional time to file its motion 

and agreed to hear the motion first.

Defendant’s Motion

Defendant’s motion for new trial was filed on September 16, 2022. It was 

supported by an attorney declaration and a two-page memorandum of points and 

authorities. The substantive contents of the declaration read as follows: “I am attorney 

of record for Defendant herein. [¶] I apologize to court and counsel for not filing this 

motion earlier. I have been off due to medical for a few weeks but expect to make a full 

recovery soon. [¶] I am informed and believe that each of the factual assertions contained 

[in the motion papers] is true and correct.”

Defendant’s notice of motion stated relief was being sought “on the ground that 

[he] was deprived of a fair trial in this matter due to the errors discussed herein,” i.e., in 

the supporting papers. The first page of the supporting memorandum contained a 

boilerplate recital of generally applicable law. The second page asserted the following 

theory of entitlement to relief on statutory grounds of juror misconduct:
10.

“Penal Code [section 1181, subdivisions 2 and 3,] specifically call 

for a new trial ‘When the jury has received any evidence out of court, other 

than that resulting from a view of the premises, or of personal property’ and 

‘When the jury has separated without leave of the court after retiring to 

deliberate upon their verdict, or been guilty of any misconduct by which a 

fair and due consideration of the case has been prevented.’

“The instant case suffers from both errors. Due to a 

misunderstanding, an unauthorized person entered the jury room, became 

the jury foreman, and gave his opinions about the case. This constituted 

evidence out of court, and the jury was separated.

“A juror who discusses the case with nonjurors commits misconduct 

[citation]. The eleven proper jurors in this case committed misconduct, 

even without intent. [¶] As noted in People v. Weatherton (2014) 59 

Cal.4th 589, a conviction cannot stand if even a single juror has been 

improperly influenced. In the instant case, the foreman, who was not an 

authorized juror, argued for guilt, and the jury returned a quick verdict of 

guilty.”

People’s Opposition

The People opposed the motion, arguing there was no misconduct and no evidence 

of prejudice. More specifically, “no evidence that the two switched jurors concealed any 

pertinent information from the Court or counsel, were biased against the Defendant, or 

that the mistake was anything beyond an accidental error.” It was further argued “both 

jurors possessed incredibly similar last names and seemingly switched positions

innocently due to the bailiff having only conducted roll call with their last names and 

failing to ever confirm the identity of those who entered in response to his call.”

As part of their opposition, the People asked the trial court to unseal “(1) the 

names of the two switched jurors; (2) the questionnaires for the two switched jurors; and

(3) the transcript from voir dire.” The trial court granted the request and evidently 

considered the names and questionnaire responses in evaluating the defense motion.

However, it appears the People failed to designate any of the unsealed material for 

inclusion in the record on appeal. This court granted a request by defendant to augment 

the record on appeal with reporter’s transcripts from the jury selection process.
11.

Trial Court’s Motion Ruling

On September 20, 2022, the motion for new trial was heard. Defense counsel 

declined to argue the motion, choosing instead to “submit it on our pleading.” The 

prosecutor did present argument, briefly reiterating “[t]hat new trials and scenarios 

involving issues with the jurors generally require misconduct or some sort of prejudice.”

The trial court gave the following reasons for granting the motion:

“[The People] have some really good points, but it’s just so different. 

It’s different [from where] a juror doesn’t reveal something that the juror 

should have because [in that scenario] we can determine whether or not 

prejudice occurred .... In this case, we’re just talking about a different 

individual all together. I do agree with you looking at their questionnaires, 

they are pretty similar. Both from Cal State, both about—one’s about ten 

years older, but I agree with [the People] on those points. However, I 

just—what we have is a situation where we had a juror sitting on the panel 

who is a stranger in one sense. We don’t know who he is. Well, we have 

his questionnaire, but he just shouldn’t have been sitting there, even though 

it was an innocent mistake.

“And it’s so different than any case that you pointed out or you cited 

to. I think I’m just forced. I don’t think I have a choice. So I think I have 

to grant the motion for a new trial. As much as I don’t want to, as much as 

I think there was a fair trial, I don’t see anything in [M.B.’s] or [J.H.’s] 

questionnaire that would cause me concern, [but] I just think that the 

defendant has a right—as the People do, but the defendant has a right to 

know exactly who the jurors are, and he didn’t in this case. So I think I 

have to grant it.”

The People immediately appealed the ruling as authorized by Penal Code section 

1238, subdivision (a)(3).

DISCUSSION

I. Applicable Law re: New Trial Motions

Penal Code section 1181 permits a criminal defendant to move for a new trial on 

specified grounds that include juror misconduct. (Id., subds. 2, 3; People v. Ault (2004)

33 Cal.4th 1250, 1260.) Although the statute declares relief is available only on the 

grounds stated therein, “new trials may nonetheless be granted on grounds not 
12.

enumerated in the statute when necessary to protect a defendant’s constitutional right to a 

fair trial.” (People v. Knoller (2007) 41 Cal.4th 139, 158; see People v. Fosselman

(1983) 33 Cal.3d 572, 582 [“the statute should not be read to limit the constitutional duty 

of trial courts to ensure that defendants be accorded due process of law”].) “[N]ew trials 

may be ordered for nonstatutory reasons when an error has occurred resulting in the

denial of defendant’s right to a fair trial, and the defendant has had no earlier opportunity 

to raise the issue.” (People v. Mayorga (1985) 171 Cal.App.3d 929, 940.)

A defendant moving for a new trial generally has the burden of establishing both 

error and prejudice. (See, e.g., In re Carpenter (1995) 9 Cal.4th 634, 657 [“the initial 

burden is on defendant to prove the misconduct”]; People v. Watts (2018) 22 Cal.App.5th 

102, 117 [where motion is based on nonstatutory ground of deficient representation, “the 

defendant has the burden of showing both the ineffectiveness of counsel and the 

prejudice it caused”].)

II. Standard of Review

“On appeal, a trial court’s ruling on a motion for new trial is subject to review for 

abuse of discretion.” (People v. Clair (1992) 2 Cal.4th 629, 667.) Such rulings are 

accorded great deference. (People v. Davis (1995) 10 Cal.4th 463, 524.) “The trial 

court’s factual findings, express or implied, made on a motion for new trial will be 

upheld if supported by substantial evidence.” (People v. Drake (1992) 6 Cal.App.4th 92, 

97.) Issues of law, on the other hand, are reviewed de novo. (People v. Hinks (1997) 58 

Cal.App.4th 1157, 1160; see People v. Patterson (2017) 2 Cal.5th 885, 894 [“‘[W]hen a 

trial court’s decision rests on an error of law, that decision is an abuse of discretion’”].)

“Of course, the discretion to grant a new trial, while broad, is not unlimited. 

Before ordering a case retried, the trial court must make its independent determination, 

under article VI, section 13 of the California Constitution, both that error occurred, and 

that the error prevented the complaining party from receiving a fair trial.” (People v. 
13.

Ault, supra, 33 Cal.4th at p. 1262.) In other words, “the trial court has ‘no discretion’ to 

award a new trial where no prejudicial error occurred.” (Id. at pp. 1262–1263; see id. at 

p. 1272, fn. 15.)

III. Juror Misconduct Was Not Established

Section 1181 permits retrial when the jury has been “guilty of any misconduct by 

which a fair and due consideration of the case has been prevented.” (Id., subd. 3.) At the 

motion hearing, the trial court described the seating mix-up involving M.B. and J.H. as 

“an innocent mistake” and “no one’s fault.” The trial court also said, “I don’t think there 

was any misconduct on their part.”

Defendant does not deny the plain meaning of the trial court’s statements. Yet he 

argues that when read in “context ..., it is apparent the court was referring to any 

intentional misconduct on the part of the jury.” In essence, defendant claims (1) the trial 

court failed to consider the possibility of misconduct in the form of unintentional

concealment; (2) that we should infer such concealment occurred during jury selection; 

and (3) the supposed concealment “raises a presumption of prejudice.” The argument 

fails for multiple reasons.

First, the issue of concealment was addressed at the motion hearing. After making 

its ruling, the trial court granted the prosecutor’s request “to make a more complete 

record” of the People’s position. The prosecutor briefly discussed In re Hitchings (1993) 

6 Cal.4th 97 and People v. Green (1995) 31 Cal.App.4th 1001, which were also cited in 

the People’s opposition brief. Although Hitchings involved intentional concealment, the 

prosecutor cited it for the general principle that concealment can “undermine the jury voir 

dire process.” (See Hitchings, at p. 111 [“A juror who conceals relevant facts or gives 

false answers during the voir dire examination thus undermines the jury selection process 

and commits misconduct”].) The prosecutor then cited Green for the rule that any 

presumed prejudice arising from concealment can be rebutted. (See Green, at p. 1017, 
14.

citing Hitchings, at p. 119 [“Juror misconduct raises a presumption of prejudice which 

‘may be rebutted by an affirmative evidentiary showing that prejudice does not exist’”].) 

Basically, the prosecutor argued even if the voir dire process was “undermined,” J.H. 

“had no ill will or bias towards the defendant.” The trial court responded, “I agree. I 

don’t think there’s any ill will or bias by anyone.”

Second, the cases upon which defendant relies involved nondisclosure of 

information known to the juror. (E.g., In re Manriquez (2018) 5 Cal.5th 785, 794–795 

[failure to disclose having been the victim of a crime]; In re Hitchings, supra, 6 Cal.4th at 

p. 112 [juror possessed “greater knowledge of the case than she revealed on voir dire”].) 

Here, there is no evidence J.H. knew he was in the wrong seat during voir dire. When a 

new trial is sought for juror misconduct, “the initial burden is on defendant to prove the 

misconduct.” (In re Carpenter, supra, 9 Cal.4th at p. 657.) Defendant did not meet this 

burden, nor can we imply any findings by the trial court regarding J.H.’s concealment of 

information he should have disclosed.

Third, defendant’s “presumption of prejudice” argument overlooks the finer points 

of law in the cases he cites. “‘Once a court determines a juror has engaged in 

misconduct, a defendant is presumed to have suffered prejudice.’” (In re Manriquez, 

supra, 5 Cal.5th at p. 797, italics added.) “An unintentional concealment caused by an 

honest mistake during voir dire, however, ‘cannot disturb a judgment in the absence of 

proof that the juror’s wrong or incomplete answer hid the juror’s actual bias.’” (Id. at pp. 

797–798.)

“‘Although juror misconduct raises a presumption of prejudice [citations], we 

determine whether an individual verdict must be reversed for jury misconduct by 

applying a substantial likelihood test. That is, the “presumption of prejudice is rebutted, 

and the verdict will not be disturbed, if the entire record in the particular case, including 

the nature of the misconduct or other event, and the surrounding circumstances, indicates 

there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or 
15.

more jurors were actually biased against the defendant.” [Citation.] In other words, the 

test asks not whether the juror would have been stricken by one of the parties, but 

whether the juror’s concealment (or nondisclosure) evidences bias.’” (In re Manriquez, 

supra, 5 Cal.5th at p. 798, quoting In re Boyette (2013) 56 Cal.4th 866, 889–890.)

To summarize, “[a] finding of ‘juror misconduct “raises a presumption of 

prejudice that may be rebutted by proof that no prejudice actually resulted.”’” (People v. 

Johnson (2021) 10 Cal.5th 1116, 1171.) The trial court did not make an express or 

implied finding of misconduct; it found there was no misconduct. Assuming we could 

nevertheless construe the record as demonstrating unintentional concealment, that 

particular form of misconduct is harmless “‘in the absence of proof’” the concealment 

somehow “‘hid the juror’s actual bias.’” (In re Manriquez, supra, 5 Cal.5th at pp. 797-

798.) Defendant presented no evidence or argument suggesting even potential bias on the 

part of J.H. Moreover, the trial court affirmatively opined there was “no ill will or bias 

by anyone.” Because defendant failed to establish the asserted statutory basis for 

granting a new trial, the trial court’s ruling cannot be upheld on those grounds.4

IV. The Seating Error Was Not Structural

“A structural defect is the type of error ‘affecting the framework within which the 

trial proceeds, rather than simply an error in the trial process itself,’ one that ‘“transcends 

the criminal process”’ and ‘def[ies] analysis by “harmless-error” standards.’ [Citation.] 

Examples of structural defects include total deprivation of the right to counsel at trial 

[citation]; trial before a judge who is not impartial [citation]; and the giving of a 

constitutionally defective instruction on reasonable doubt [citation].” (People v. 

Marshall (1996) 13 Cal.4th 799, 851.) Put differently, structural errors “go to the very 

reliability of a criminal trial as a vehicle for determining guilt or innocence and are

4Defendant concedes his alternative argument below, based on section 1181, subdivision 

2, lacked merit. His appellate brief acknowledges, “This was not a case where misconduct arose 

from improper discussions among jurors or consideration of extraneous evidence.”
16.

reversible per se.” (People v. Anzalone (2013) 56 Cal.4th 545, 554; accord, Arizona v. 

Fulminante (1991) 499 U.S. 279, 310.)

Case law recognizes “‘at least three broad rationales’ for treating an error as 

structural. [Citation] ‘First, an error has been deemed structural in some instances if the 

right at issue is not designed to protect the defendant from erroneous conviction but 

instead protects some other interest. This is true of the defendant’s right to conduct his 

own defense, which, when exercised, “usually increases the likelihood of a trial outcome 

unfavorable to the defendant.” ... Second, an error has been deemed structural if the 

effects of the error are simply too hard to measure. ... Third, an error has been deemed 

structural if the error always results in fundamental unfairness.’” (In re Christopher L.

(2022) 12 Cal.5th 1063, 1077, quoting Weaver v. Massachusetts (2017) 582 U.S. 286, 

295–296.)

There is a strong presumption that errors are not structural, “and it will be the rare 

case where a constitutional violation will not be subject to harmless error analysis.”

(People v. Anzalone, supra, 56 Cal.4th at p. 554; accord, Neder v. United States (1999) 

527 U.S. 1, 8.) “Typically, when an ‘error is purely one of state law, the Watson

harmless error test applies.’” (People v. Lewis (2021) 11 Cal.5th 952, 973, citing People 

v. Watson (1956) 46 Cal.2d 818, 836.) “However, state statutory error may amount to 

structural error if it is ‘“analogous to” ... “the total deprivation of the right to counsel at 

trial.”’” (Lewis, at p. 973; see Rose v. Clark (1986) 478 U.S. 570, 579 [“if the defendant 

had counsel and was tried by an impartial adjudicator, there is a strong presumption that 

any other errors that may have occurred are subject to harmless-error analysis”].)

The trial court’s remarks about “a right to know exactly who the jurors are” seem 

to imply the seating error was viewed as structural. However, the nonexistence of such a 

constitutional right is evident from cases upholding the use of anonymous juries in 

criminal trials. (See, e.g., U.S. v. Pica (2d Cir. 2012) 692 F.3d 79, 85, fn. 1 [“prospective 

jurors completed a detailed questionnaire, but their names, addresses, and workplaces 
17.

were not disclosed”]; U.S. v. Yepiz (9th Cir. 2017) 718 Fed.Appx. 456, 465 [“empaneling 

an anonymous jury ‘requires withholding, at least, the jurors’ names from the parties’”].) 

“Every court that has considered the issue has held that, when genuinely needed and 

when properly used, anonymous juries do not infringe a defendant’s constitutional 

rights.” (U.S. v. Ross (11th Cir. 1994) 33 F.3d 1507, 1519.) “Where jury anonymity is

warranted, the defendant’s fundamental right to an unbiased jury is sufficiently 

guaranteed by the court’s conduct of a voir dire that can uncover any bias toward issues 

in the case or to the defendant himself.” (Id. at p. 1520; accord, People v. Goodwin, 

supra, 59 Cal.App.4th at p. 1092.)

Code of Civil Procedure section 237 has been interpreted as requiring disclosure 

of the names of prospective jurors during jury selection “unless the court determines that 

a compelling interest ... requires that this information should be kept confidential or its 

use limited in whole or in part.” (Id., subd. (a)(1).) But denial of this statutory right is 

not a structural error. In the few published decisions involving violations of the statute, 

such errors were held to be harmless. (E.g., People v. Lopez (2021) 65 Cal.App.5th 484, 

489, 501–503; People v. Phillips (1997) 56 Cal.App.4th 1307, 1309–1310.) In Lopez, the 

appellate court noted defense counsel “had an extensive opportunity to inquire into any 

bias a juror may have had and to elicit additional information that could have revealed the 

juror’s withholding of relevant facts.” (Lopez, at p. 502.)

Defendant contends the seating mistake impaired his ability to exercise informed 

peremptory challenges. On the premise that such impairment amounts to a constitutional 

deprivation, he reasons the error must be structural because its consequences are 

“‘necessarily unquantifiable and indeterminate,’” i.e., too difficult to measure by 

harmless error analysis. (Quoting United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 

150.) The argument is flawed.

Criminal defendants have a constitutional right to a fair and impartial jury. (U.S. 

Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) This entitles them “to jurors who 
18.

are qualified and competent, [but] not to any particular juror.” (People v. Holt (1997) 15 

Cal.4th 619, 656.) “The right to voir dire the jury is not constitutional, but is a means to 

achieve the end of an impartial jury. [Citation.] In addition, ‘the peremptory challenge is 

not a constitutional necessity but a statutory privilege.’” (People v. Ramos (2004) 34 

Cal.4th 494, 512; accord, People v. Westerfield (2019) 6 Cal.5th 632, 673 [“‘Peremptory 

challenges are intended to promote a fair and impartial jury, but they are not a right of 

direct constitutional magnitude’”].)

“The fact that an error implicates important constitutional rights does not 

necessarily make it structural.” (People v. Sivongxxay (2017) 3 Cal.5th 151, 178.) This 

is illustrated by the case of Rivera v. Illinois (2009) 556 U.S. 148, which arose from “a 

state trial court’s erroneous denial of a defendant’s peremptory challenge to the seating of 

a juror in a criminal case.” (Id. at p. 151.) Appellant Rivera claimed “[t]he improper 

seating of a juror ... is not amenable to harmless-error analysis because it is impossible to 

ascertain how a properly constituted jury—[i.e.], one without [the juror he wanted to 

remove]—would have decided his case.” (Id. at p. 157.) He thus argued that “whatever 

the constitutional status of peremptory challenges, automatic reversal must be the rule as 

a matter of federal law.” (Ibid.)

Rivera’s claim was unanimously rejected by the United States Supreme Court: “If 

a defendant is tried before a qualified jury composed of individuals not challengeable for 

cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a 

matter of federal constitutional concern. Rather, it is a matter for the State to address 

under its own laws.” (Rivera v. Illinois, supra, 556 U.S. at p. 157.) “States are free to 

decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory 

challenge is reversible error per se. Or they may conclude ... that the improper seating of 

a competent and unbiased juror does not convert the jury into an ultra vires tribunal; 

therefore the error could rank as harmless under state law.” (Id. at p. 162.)
19.

The California Supreme Court has also declined to classify errors affecting a 

criminal defendant’s ability to voir dire and peremptorily challenge jurors as structural. 

In People v. Black (2014) 58 Cal.4th 912, the appellant alleged two of his challenges for 

cause were erroneously denied. Consequently, he was forced to use “two of his allotted 

peremptory challenges to remove the same jurors.” The loss of those peremptory 

challenges resulted in the seating of a juror whom he had wanted to remove but could not 

because the trial court denied his request for additional challenges. (Id. at p. 914.) It was 

held that “[b]ecause no incompetent juror who should have been dismissed for cause sat 

on his case as a result of his exhausting his peremptory challenges,” the alleged error was 

not prejudicial. (Ibid.)

The appellant in Black argued he was “entitled to ‘mold the jury’ using the full 

complement of peremptory challenges that [Code of Civil Procedure section 231] 

affords.” (People v. Black, supra, 58 Cal.4th at p. 918.) He further claimed, “[w]ithout 

citation to authority ... that denial of such an entitlement is reversible per se.” (Ibid.) 

The California Supreme Court disagreed. “If no biased or legally incompetent juror 

served on defendant’s jury, the judgment against him does not suffer from a federal 

constitutional infirmity ....” (Id. at p. 917.)

The majority opinion in Black concludes with these statements: “The record does 

not show, and defendant does not contend, that Juror No. 8 was biased and removable for 

cause. (Cal. Const., art. VI, § 13.) This juror was not subject to removal for any other 

qualitative reason that would render his sitting in defendant’s trial unfair or inconsistent 

with impartiality. The fact that the trial court refused defendant’s request for an 

additional challenge to remove that same juror is not reversible error.” (People v. Black, 

supra, 58 Cal.4th at pp. 921–922.) In a concurrence, Justice Liu opined that “[a] 

defendant cannot be said to have suffered substantial disadvantage with respect to the 

prosecution from the seating of a single objectionable juror [who is nevertheless qualified 

and competent to serve].” (Id. at p. 923.)
20.

In People v. Rices (2017) 4 Cal.5th 49, the appellant in a death penalty case 

claimed three of his challenges for cause were erroneously denied and further alleged 

“the trial court impermissibly curtailed voir dire of prospective jurors regarding their 

attitude towards the death penalty.” (Id. at p. 77.) Neither of the alleged errors were 

viewed as structural. Regarding the restriction on voir dire, because it “‘did not deprive 

the defendant of all opportunity to ascertain jurors’ views on case-specific facts,’” the 

alleged error was not reversible per se. (Id. at p. 78; see People v. Cash (2002) 28 

Cal.4th 703, 722 [“Error in restricting death-qualification voir dire does not invariably 

require reversal of a judgment of death”].) The other claim was rejected for failure to 

“demonstrate that any sitting juror was biased and should have been excused for cause.”

(Rices, at p. 77 [“Accordingly, he has not shown prejudice even if we assume the court 

should have granted the challenges for cause to the three prospective jurors”].)

All the cases discussed above treated mistakes occurring in the jury selection 

process not as structural defects, but as errors subject to harmless error analysis based on

(1) the protections otherwise afforded to the accused through voir dire and (2) evidence 

of bias, or lack thereof, as developed through that process. Framing the issue here in 

terms of whether juror J.H. was a “stranger” to defendant or not truly one of the 12 

people he knowingly “accepted” as his jury does not make the alleged error structural. In 

Rivera and Black, for example, the appellants did not willingly accept all 12 jurors who 

decided their fate. (See Rivera v. Illinois, supra, 556 U.S. at p. 159 [“Rivera attempted to 

exercise a peremptory challenge against a specific person ... whom he perceived to be 

unfavorable to his cause”]; People v. Black, supra, 58 Cal.4th at pp. 914 [defendant 

argued for reversal “because one of the jurors he objected to sat on his case”], 918 

[rejecting structural error argument].)

“It is clear that knowledge of the composition of the entire panel can be relevant to 

the informed exercise of a peremptory challenge against a particular juror.” (People v. 

Wright (1990) 52 Cal.3d 367, 397, disapproved on another ground as stated in People v. 
21.

Williams (2010) 49 Cal.4th 405, 459.) However, “the fact that a particular procedure 

used might have made exercising initial peremptory challenges less informed does not in 

itself require reversal.” (People v. Avila (2006) 38 Cal.4th 491, 538, citing Wright, at p. 

397.) “Unless the voir dire ‘is so inadequate that the reviewing court can say that the 

resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not 

a basis for reversal.’” (People v. Contreras (2013) 58 Cal.4th 123, 143.)

The absence of structural error here is confirmed by scrutiny of the framework in 

question. “The United States Constitution ‘does not dictate a catechism for voir dire, but 

only that the defendant be afforded an impartial jury.’” (People v. Avila, supra, 38 

Cal.4th at p. 536.) “There is no constitutional right to voir dire per se. Nor is there any 

constitutional right to conduct voir dire in a particular manner.” (People v. Contreras, 

supra, 58 Cal.4th at p. 143.) It is largely up to the trial court to determine how juror 

qualifications will be assessed, and “neither the state nor federal Constitution requires 

individualized voir dire questioning by attorneys.” (People v. Perez (2018) 4 Cal.5th 

421, 443.) The use of questionnaires is optional and subject to court approval. (Code 

Civ. Proc., §§ 205, 223, subd. (e); Cal Rules of Court, rule 4.201.) The parties have a 

statutory right to orally question prospective jurors (Code Civ. Proc., § 223, subd. (b)(1)), 

which was not curtailed by the jury selection process used in this case.

As previously explained, all prospective jurors underwent preliminary screening 

for bias. This entailed the completion of a 10-page questionnaire and individual 

questioning of most panel members, all of which occurred prior to the seating mishap 

involving J.H. and M.B. The process resulted in the removal of seven prospective jurors 

for cause.

Although the trial court initially chose which people would be separately 

examined based on their written responses, the attorneys had the ability to request 

questioning of additional panel members. The defense was thus afforded two distinct 

opportunities to ask J.H. about his questionnaire responses: once during the preliminary 
22.

screening (prior to the seating error) and again during group voir dire. Both sides had 10 

peremptory challenges (Code Civ. Proc., § 231), which provided sufficient incentive to 

ask J.H. about anything of concern in his questionnaire regardless of whether counsel 

believed J.H. was located higher up in the 34-person seating chart.

Again, defendants have “a right to jurors who are qualified and competent, not to 

any particular juror.” (People v. Holt, supra, 15 Cal.4th at p. 656, italics added.) When 

the framework used to select a fair and impartial jury provides adequate means and 

opportunity to detect grounds for removal for cause, errors occurring in that process will 

rarely be structural. In People v. Mello (2002) 97 Cal.App.4th 511, a trial judge told 

prospective jurors that if they were racially biased but afraid to admit it, they should lie 

about their bias and answer questions in such a way as to be excused on other grounds. 

(Id. at pp. 513–514.) The error was held structural because it “skewed the integrity of the 

entire voir dire process and adversely affected the manner in which the jurors would 

evaluate the evidence.” (Id. at p. 519.) A “Batson/Wheeler” error is likewise structural 

because purposeful racial discrimination in the use of peremptory challenges is damaging 

to “‘the structural integrity of the criminal tribunal.’” (People v. Gutierrez (2017) 2 

Cal.5th 1150, 1172; see Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler

(1978) 22 Cal.3d 258.)

In cases involving mistakenly seated jurors, whether due to 

concealment/nondisclosure or the erroneous denial of a challenge (peremptory or for 

cause), the problem is not the structural framework within which the error occurs. 

Moreover, the rationale for automatic reversal because prejudice is too difficult to 

measure does not apply since the test for prejudice is not what would have happened if 

the improperly seated person had not served on the jury. The test for prejudice is whether 

the error affected the defendant’s right to a fair and impartial jury. In other words, 

whether the improperly seated juror was biased. (E.g., People v. Ramirez (2022) 13 

Cal.5th 997, 1048 [denial of challenge for cause]; In re Manriquez, supra, 5 Cal.5th at 
23.

pp. 797–798 [unintentional concealment/nondisclosure]; People v. Black, supra, 58 

Cal.4th at p. 920 [denial of challenge for cause/deprivation of peremptory challenge]; In 

re Hitchings, supra, 6 Cal.4th at pp. 118–119 [intentional concealment]; People v. Singh

(2015) 234 Cal.App.4th 1319, 1331–1332 [denial of peremptory challenge].)

In People v. Green, supra, 31 Cal.App.4th 1001, the jury foreperson was 

discovered to have concealed that he was previously convicted of a felony. (Id. at pp. 

1012, 1016.) At the time, all convicted felons were barred from jury service (Code Civ. 

Proc., § 203, former subd. (a)(5)), meaning the foreperson was unqualified to serve on the 

jury as a matter of law. (Green, at p. 1016, fn. 13.) Nevertheless, the appellate court 

upheld the denial of the appellant’s motion for new trial because there was no indication 

the juror’s “status as an ex-felon affected his ability to be impartial.” (Green, at p. 1019.) 

If the seating of an unqualified juror is not reversible per se, and the erroneous seating of 

a juror to whom the defense objected and challenged is not reversible per se (e.g., People 

v. Black, supra, 58 Cal.4th at pp. 916–918, 920–921), it stands to reason the seating of 

J.H. on defendant’s jury is not reversible per se.

When mistakes occur that limit the availability of information about prospective 

jurors without completely removing the safeguards of voir dire and the ability to exercise 

statutorily guaranteed challenges, such mistakes can be harmless. (See People v. Avila, 

supra, 38 Cal.4th at pp. 535–538; People v. Goodwin, supra, 59 Cal.App.4th at p. 1092 

[“even an anonymous jury is constitutional when warranted by the facts, and any 

prejudice in the ability to select a jury is not assumed but must be established, principally 

by analysis of the voir dire”].) The mistake here did not deprive defendant of the “‘basic 

protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle 

for determination of guilt or innocence.’” (Neder v. United States, supra, 527 U.S. at pp. 

8–9.) Therefore, the jury selection process in this case did not suffer from a structural 

defect.
24.

V. Remand is Warranted

“No judgment shall be set aside, or new trial granted, in any cause ... for any 

error as to any matter of procedure, unless, after an examination of the entire cause ... the 

court shall be of the opinion that the error complained of has resulted in a miscarriage of 

justice.” (Cal. Const., art. VI, § 13, italics added.) Therefore, unless retrial is mandatory

due to structural error, a criminal defendant’s motion for new trial cannot be granted 

without a finding of prejudice. This is explained in People v. Ault, supra, 33 Cal.4th 

1250. “Before ordering a case retried, the trial court must make its independent 

determination, under article VI, section 13 of the California Constitution, both that error 

occurred, and that the error prevented the complaining party from receiving a fair trial.”

(Id. at p. 1262.) If and when such a determination is made, it is entitled to deference and 

will be reviewed for abuse of discretion. (Id. at p. 1272, fn. 15.)

The trial court seemingly believed the seating error was reversible per se. Because 

of the apparent confusion regarding the scope of its discretion, it should be permitted to 

reconsider the motion for new trial on remand. (See Doe v. Atkinson, supra, 96 

Cal.App.5th at p. 679; cf. People v. Lee (2017) 16 Cal.App.5th 861, 875.) While we have 

concluded the error was not structural, we also appreciate that the assessment of prejudice 

is challenging given the unique circumstances. “[A]lthough Watson sets forth the test 

that generally applies to the prejudice inquiry under state law [citation], not every error is 

of the type that lends itself to resolution under a likelihood-of-success test.” (In re K.H. 

(2022) 84 Cal.App.5th 566, 608.) The focus here is on the integrity of the jury process 

and its bearing on defendant’s fundamental right to a fair trial. As discussed, the 

jurisprudence developed in the juror concealment and bias cases provide guidance on the 

inquiry and analysis necessary on remand to determine whether the right to a fair trial 

was violated.

For all of the foregoing reasons, we will remand the matter with directions to the 

trial court to vacate its order granting the motion for a new trial and reconsider the motion 
25.

under the applicable law as discussed herein. We express no opinion as to whether the 

motion for new trial should be granted or denied.

DISPOSITION

The cause is remanded for further proceedings consistent with this opinion, which 

shall include vacating the challenged order and reconsideration of defendant’s motion for 

new trial.

PEÑA, Acting P. J.

I CONCUR:

MEEHAN, J.
SNAUFFER, J., Concurring.

I agree with the remand to the trial court for further consideration.

This is a very unusual case that to some extent defies conventional legal analysis. 

In my view, the central issue for the trial court to decide on remand is whether the 

defendant had a right to know and rely upon the fact that the jurors both defendant and 

the prosecutor agreed to decide the case were in reality who they were supposed to be. I 

submit that the error in this case occurred when the jury was sworn, with one juror who 

not only should not have been present, but was not in fact the person everyone believed 

him to be. 

It will be for the trial court, exercising its considerable discretion, to decide 

whether this produced a fair trial, or justified the granting of a new trial under the 

appropriate legal standards.

SNAUFFER, J.