Alcazar v. L.A. Unified School Dist.

Filed 10/16/18; Certified for Publication 11/15/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
EDGAR A. ALCAZAR, a Minor, B281383
etc.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC534724)
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David L. Minning, Judge. Affirmed.
Homampour Law Firm, Arash Homampour; Law Offices of
David H. Greenberg, David H. Greenberg; Ehrlich Law Firm and
Jeffrey I. Ehrlich for Plaintiff and Appellant.
Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall
for Defendant and Respondent.
——————————
Edgar A. Alcazar (Edgar), a minor, allegedly suffered
severe and permanent injuries when he fell from the branch of a
tree located on the campus of his middle school. By and through
his guardian ad litem, Edgar sued the Los Angeles Unified School
District (LAUSD). A jury found in favor of LAUSD on all of
Edgar’s claims.
On appeal, Edgar advances two arguments for why he is
entitled to a new trial; both arguments relate to the jury selection
process, which ultimately involved three venires. First, Edgar
argues that the trial court erred when, following the first venire,
it refused to allow counsel to make mini-opening statements to
the second and third venires and prohibited counsel from
referring to the specific facts of the case during the balance of
voir dire. Second, Edgar contends that the trial court erred by
refusing to remove two jurors for cause.
We are not persuaded by either of Edgar’s arguments.
Accordingly, we affirm the judgment.
BACKGROUND
On May 7, 2013, shortly after lunch began at Edgar’s
middle school, the principal received a radio call that “something
had happened.”
A minute or two after receiving the call, the principal
arrived at the scene and found Edgar, who was 13 years old at
the time, lying on his back on a pedestrian walkway next to a
concrete planter box that held a crepe myrtle tree. Lying next to
Edgar was a broken branch from that tree. The branch was
approximately 2 inches in diameter at its thickest point and
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approximately six to eight feet long. Prior to the incident, school
staff had seen Edgar swinging “like Tarzan” from that very same
branch and had warned him not to do so as it was “unsafe.”
When the principal found him, Edgar had his eyes open
and was conscious, but was saying little. The principal
summoned paramedics, who transported Edgar to a nearby
hospital where he was treated for a skull fracture and a
concussion or a mild traumatic brain injury.
Six months later, in January 2014, Edgar sued LAUSD for
negligence and premises liability, alleging that he had “sustained
severe and permanent injuries when he climbed and then fell
from the subject tree.” By the time of trial in November 2016,
Edgar asserted three separate claims against LAUSD:
negligence; a violation of Education Code section 44807; and,
pursuant to Government Code section 835, a claim for a
dangerous condition on public property.
I. The Jury Selection Process
Initially, the trial court suggested that the parties limit
their questioning to 1.5 hours per side. Although LAUSD’s
counsel was amenable to such a time limit, Edgar’s counsel
demurred, explaining that, due to the complexity of a personal
injury action against a school district, especially one where the
alleged special damages exceeded $15 million, he would need
more than an hour and a half to examine prospective jurors. The
trial court stated that it understood the concerns of Edgar’s
counsel and did not place any time limits on voir dire.
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A. The trial court’s limits on voir dire
On November 1, 2016, before the start of voir dire, the
parties jointly requested leave to give mini-opening statements to
the venire. The trial court acceded to the parties’ request and
limited each side’s mini-opening to three minutes.
On November 3, 2016, the first day of voir dire, the trial
court began by reading a short, stipulated statement of the case
to the prospective jurors setting out the parties’ basic
contentions.1 Immediately thereafter, the trial court allowed
counsel for each party to give a mini-opening statement.
In his mini-opening statement, Edgar’s counsel, among
other things, discussed the following: Edgar’s age; his learning
disabilities; his reputation as a “class clown”; LAUSD’s
knowledge that children at Edgar’s school, including Edgar, were
swinging on tree branches; Edgar’s theories of liability: LAUSD’s
failure to provide a safe environment by not cutting down the
1 The agreed-upon statement of the case provided as
follows: “This matter arises out of an incident that [occurred] on
May 7, 2013, at [the middle school]. [Edgar] contends [that] he
was left unsupervised and fell from a tree located on campus
during school hours thereby causing severe injuries. [Edgar]
contends that [LAUSD] is liable because it knew or should have
known that children were climbing trees unsupervised and did
nothing to prevent students from doing so. [¶] [LAUSD]
contends that [Edgar] was enrolled in the Special Day Class
wherein he was properly supervised at all pertinent times.
[LAUSD] further contends that the incident was the result of
[Edgar’s] careless conduct and that [LAUSD] did not cause the
incident. [¶] [Edgar] seeks damages for past and future medical
bills, future pain and suffering, and future loss of earning and
earning capacity. [LAUSD] disputes liability and the extent and
scope of [Edgar’s] claimed injuries and damages.”
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branch and by not properly supervising the children; and Edgar’s
alleged damages, including “millions of dollars” of future medical
care.
In his mini-opening statement, LAUSD’s counsel discussed,
among other things, the following: Edgar’s height and weight
(five feet 11 inches tall, 176 pounds); his learning disabilities and
also his ability to distinguish right from wrong; the school’s
repeated warnings to Edgar not to swing on tree branches and
his refusal to follow those directions; the school’s supervision of
children during lunch recess; and Edgar’s alleged injuries.
At the close of the first day of voir dire, the trial court
dismissed for cause three prospective jurors who Edgar claimed
would be unfair to his case and dismissed one juror who LAUSD
claimed would be unfair to its case. The trial court took under
advisement the dismissal of a fifth member of the venire,
prospective juror No. 3.
On the morning of November 4, 2016, prospective juror
No. 3 asked to speak to the court. After the trial court granted
his request, prospective juror No. 3 advised that, based upon the
“details” that came out in the parties’ “presentation[s],” he could
not be fair to Edgar. Based on the information in the parties’
mini-opening statements, prospective juror No. 3 concluded,
“‘Wow, this kid didn’t take responsibility for his own actions. He
did something he was told not to do.’” Prospective juror No. 3
stated further that he believed “it was a mistake to put out that
much detail about [the case] because it already gave [him] reason
to be against [Edgar].” The trial court dismissed prospective
juror No. 3 for cause.
In light of the comments made by prospective juror No. 3,
and in light of concerns that the trial court had about Edgar’s
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counsel preconditioning the prospective jurors—concerns that the
trial court shared with counsel before interviewing prospective
juror No. 3—the trial court concluded that the parties would not
be allowed to give mini-opening statements to any future panels
of prospective jurors; instead, the court would simply read the
parties’ agreed-upon statement of the case. In addition, the trial
court instructed the parties that during voir dire “[t]here will be
no mentioning of facts specific to this case.” The court explained
that while general questions about school safety, for example,
were permissible, questions based on facts specific to the case at
bar were not.
To the second venire on November 4 and to the third venire
on November 7, the trial court read the parties’ joint statement of
the case, but did not allow the parties to give mini-opening
statements. In addition, on November 4, the trial court, using
the language of CACI No. 106, instructed the prospective jurors
that statements by counsel, including statements made during
voir dire, were not evidence.
During his questioning of the second and third venires,
Edgar’s counsel referenced a number of case-specific facts and
issues that were either not mentioned in the joint statement of
the case or only alluded to; those facts and issues included the
following: Edgar’s age at the time of the incident; Edgar’s status
as a special needs student at a regular school; whether a 13-year
old could look at a tree limb and appreciate that the branch
would not hold his weight; whether a 13-year-old could be at fault
for hurting himself; whether a tree should be cut/trimmed for
safety reasons; whether a school should supervise children who
are 13 years or older; whether a school district has an obligation
to do more than tell a 13-year-old not to do something that is
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risky or unsafe; whether telling a student not to swing on a tree
limb was sufficient to deter the student from repeating that
behavior in the future; whether a school should tell parents about
their child’s potentially dangerous behavior while at school;
whether a school should supervise children in the same way as
their parents; and whether any of the prospective jurors had
suffered a traumatic brain injury or had any experience with
someone who had suffered such an injury.
In addition, Edgar’s counsel questioned the second and
third venires on a number of legal concepts. For example,
Edgar’s counsel discussed with the prospective jurors the concept
of comparative negligence, asking repeatedly if they could keep
an open mind if Edgar admitted that he was partially at fault.
Edgar’s counsel also explored with the prospective jurors whether
they could award Edgar “a lot of money” for his alleged damages,
including compensation for pain and suffering. On a related
note, Edgar’s counsel inquired if the prospective jurors would cap
Edgar’s damages or award him reduced damages because the
defendant was a school district.
B. Juror M: challenged for cause
One of the members of the initial venire was Juror M.
During voir dire on November 3, Juror M volunteered that she
thought LAUSD could not “be held responsible for a kid being a
kid.” Juror M explained further that, Edgar “was told multiple
times, [but] he did it nonetheless. And kids will be kids, they’ll
do whatever they want.” When pressed by Edgar’s counsel on
whether she could keep an “open mind,” Juror M responded as
follows: “Sure, I guess; but then again it would have been
another issue. . . . [¶] . . . I mean—I don’t know. I just don’t
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think the school should be held responsible for the kid’s actions.”
When asked by Edgar’s counsel if she could be fair to Edgar, she
replied, “No. [¶] . . . [¶] I wouldn’t be fair.”
When asked by LAUSD’s counsel if she could try to be fair
and analyze the evidence as it came across the witness stand,
Juror M said, “Yes.” Further, when asked if she was going to give
Edgar a “fair shake,” Juror M said, “I’ll try, yes.” And, when
asked if she would obey the law as instructed by the court, Juror
M replied, “Yes.”
On the following day, November 4, Edgar’s counsel again
inquired as to Juror M’s ability to be fair given Edgar’s damages
claim. Juror M responded that Edgar’s claim for damages was
“very excessive.” Juror M admitted further that, because she was
already thinking that the damages claim was excessive, she was
effectively telling Edgar’s counsel that she “probably can’t be
fair.” However, Juror M also told Edgar’s counsel that she would
try to be fair and that she “would have to see the evidence.”
In response to probing by LAUSD’s counsel, Juror M stated
that she would be able to be fair and keep an open mind, listen to
the testimony and then make a decision. In addition, Juror M re-
affirmed that she would follow the law as instructed.
Later that day, the trial court denied Edgar’s challenge to
Juror M for cause. Ultimately, Juror M served on the jury.
C. Juror S: challenged for cause
Juror S joined the panel of prospective jurors on
November 4, the second day of voir dire. When Edgar’s counsel
asked Juror S if he had any strong feelings about the case, he
replied that he needed to “hear more about the case.” When
asked if he had any strong feelings that would make him unfair
8
to Edgar, Juror S responded, “No.” When pressed by Edgar’s
counsel, Juror S stated that he would keep an open mind even if
Edgar admitted to being partially responsible for his injury.
Juror S stated further that it would not be hard for him to keep
an open mind about the school’s alleged role in causing or
contributing to Edgar’s injury. However, Juror S expressed some
hesitation on the issue of compensating Edgar for his injury:
“Well, the kid, they already know the rules. That’s his own
responsibility because they already know about the rules.” When
Edgar’s counsel attempted to explore Juror S’s answers regarding
Edgar’s knowledge about the school’s safety rules, Juror S
became in his own words “nervous,” responding to questions by
stating, “I don’t understand,” and “I don’t know what to say,” and
ultimately reversing himself, stating that he could not keep an
open mind because he was nervous. After Juror S said that he
was nervous, the trial court suggested that the parties turn their
questioning to another prospective juror, which they did.
Later that day, the trial court denied Edgar’s challenge to
Juror S for cause. Ultimately, Juror S served on the jury.
On November 7, 2016, while voir dire was still proceeding,
Edgar moved for a mistrial, arguing that the trial court should
have granted certain of his challenges for cause, including his
challenges to Jurors M and S. On November 9, 2016, LAUSD
filed its written opposition to the motion. On November 10, 2016,
after voir dire had ended and testimony had begun, the trial
court denied the motion.
II. The Trial
At trial, Edgar conceded that he was “partially responsible”
for his injuries, but argued nonetheless that LAUSD failed to
9
follow its own safety plans and rules and that its negligence
caused his injuries. In its defense, LAUSD argued that there was
a detailed safety plan in place, the school and its staff followed
that plan, and Edgar’s learning disabilities did not interfere with
his ability to distinguish right from wrong—that is, Edgar,
having been previously warned about the danger of swinging
from tree branches, knowingly chose to engage in risky behavior
and no reasonable amount of supervision could have prevented
the accident.
On December 5, 2016, after less than two hours of
deliberation, the jury returned a verdict in favor of LAUSD. On
each claim, the jury’s vote was 11 to 1. On January 3, 2017, the
trial court entered judgment in LAUSD’s favor. Edgar timely
appealed.
DISCUSSION
I. The Prohibition on Additional Mini-opening Statements
and Case-specific Facts
On appeal, Edgar argues the trial court’s order after the
first day of voir dire prohibiting additional mini-opening
statements and discussion of case-specific facts “cannot be
squared with the purpose of [Code of Civil Procedure] section
222.5, or with its terms. It was clear error.” As discussed below,
we disagree.
A. Standards of review
“An appellate court applies the abuse of discretion standard
of review to a trial court’s conduct of the voir dire of prospective
jurors. [Citation.] A trial court abuses its discretion when its
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ruling [on voir dire] ‘ “fall ‘outside the bounds of reason.’ ” ’ ”
(People v. Benavides (2005) 35 Cal. 4th 69, 88; People v. Navarette
(2003) 30 Cal. 4th 458, 486 [same].)
The “interpretation of governing statutes is decided de novo
by the appellate court.” (Gaytan v. Workers’ Comp. Appeals Bd.
(2003) 109 Cal. App. 4th 200, 214.) “When we construe a statute,
our ‘ “ ‘fundamental task . . .’ ” . . . “ ‘is to ascertain the intent of
the lawmakers so as to effectuate the purpose of the statute.’ ” ’ ”
(Hartnett v. San Diego County Office of Education (2017) 18
Cal.App.5th 510, 522.)
B. The evolution of section 222.5
1. Original enactment
In September 1990, the Legislature enacted section 222.5 of
the Code of Civil Procedure2 as part of a broader effort to revise
and extend indefinitely the Trial Court Delay Reduction Act of
1986. (Office of Local Gov. Affairs, analysis of Assem. Bill
No. 3820 (Sept. 10, 1990), p. 1.) “In order to further reduce
delays in criminal court actions, the Trial Court Delay Reduction
Act provide[d] judges with more authority to control voir dire
examination.” (Id. at p. 3.) Section 222.5 was designed to extend
that authority to control voir dire to civil court actions. (Ibid.)
To obtain that end, section 222.5 provided that, following
the trial judge’s examination of the venire, “counsel for each
party shall have the right to examine, by oral and direct
questioning, any of the prospective jurors in order to enable
2Section 222.5 was added by Statutes 1990, chapter 1232
(Assem. Bill No. 3820), section 1.5.
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
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counsel to intelligently exercise both peremptory challenges and
challenges for cause.” (Italics added.) Section 222.5 provided
further that “the trial judge should permit liberal and probing
examination calculated to discover bias or prejudice with regard
to the circumstances of the particular case.” (Italics added.)
Although the statute gave counsel the right to examine the
venire, section 222.5 made clear that any such examination was
subject to the trial court’s discretion: “The scope of the
examination conducted by counsel shall be within reasonable
limits prescribed by the trial judge in the judge’s sound
discretion.” (Italics added.) As originally enacted, section 222.5
did not provide that counsel for the parties could make short
opening statements to the venire.
2. 2011 amendment
In September 2011, the Legislature amended section 222.5.
(Stats. 2011, ch. 409 (Assem. Bill No. 1403), § 1.) As originally
introduced in March 2011, Assembly Bill No. 1403 would, among
other things, “require the trial judge to permit liberal and probing
examination calculated to discover bias or prejudice.” (Assem.
Bill No. 1403 (2011–2012 Reg. Sess.) as introduced Mar. 7, 2011,
p. 1, italics added.) Specifically, Assembly Bill No. 1403
proposed amending the section 222.5 as follows: “During any
examination conducted by counsel for the parties, the trial judge
shall permit liberal and probing examination calculated to
discover bias or prejudice with regard to the circumstances of the
particular case.” (Id. at p. 2.) However, by June 2011, that
mandatory language had been stricken from the proposed
amendment in both the Assembly and in the Senate. (See Assem.
& Sen. Amend. to Assem. Bill No. 1403 (2011–2012 Reg. Sess.)
12
May 10, 2011 & June 23, 2011, p. 3.) The more permissive
“should” language was retained in the final version of the
amendment.
In early September 2011, the Senate introduced several
amendments to the proposed legislation including the following:
“The trial judge should allow a brief opening statement by
counsel for each party prior to the commencement of the oral
questioning phase of the voir dire process.” (Sen. Amend. to
Assem. Bill No. 1403 (2011-2012 Reg. Sess.) Sept. 2, 2011, p. 3.)
The Senate Judiciary Committee explained that the proposed
amendments, including the provision for opening statements,
were “largely declarative of existing practices.” (Sen. Com. on
Judiciary, Analysis of AB 1403 (2011-2012 Reg. Sess.) as
amended Sept. 2, 2011, p. 4.)
In its 2011 amendments to section 222.5, the Legislature
left unchanged the trial court’s discretion to place “reasonable
limits” on the scope of the examination by the parties’ counsel.
The Senate Judiciary Committee noted that this decision was a
deliberate one: “consensus language was reached that would
address limitations placed by judges on parties conducting voir
dire [such as prohibiting the use of blanket time limits on the voir
dire process] while still preserving judicial discretion in
overseeing a fair and impartial voir dire process.” (Sen. Com. On
Judiciary, Analysis of AB 1403 (2011-2012 Reg. Sess.) as
amended Sept. 2, 2011, p. 2, italics added; see also id. at pp. 6-7.)
In short, the legislative history of section 222.5 reveals that
the Legislature enacted the statute and later amended it to
insure that civil trial courts possessed the necessary
discretionary authority to control the voir dire process.
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3. Section 222.5 at the time of trial3
As a result of the 2011 amendments, section 222.5, in
pertinent part, provided as follows at the time of trial: “Upon
completion of the judge’s initial examination, counsel for each
party shall have the right to examine, by oral and direct
questioning, any of the prospective jurors in order to enable
counsel to intelligently exercise both peremptory challenges and
challenges for cause. During any examination conducted by
counsel for the parties, the trial judge should permit liberal and
probing examination calculated to discover bias or prejudice with
3 Section 222.5 was subsequently amended in 2017, with
the amendments taking effect on January 1, 2018. (Stats. 2017,
ch. 337 (Sen. Bill No. 658), § 1.)
The 2017 amendments made certain advisory provisions
mandatory. For example, the current version of section 222.5
requires a trial court to allow counsel greater leeway in
determining bias or prejudice (“the trial judge shall permit liberal
and probing examination”). (§ 222.5, subd. (b)(1), italics added.)
In addition, “[u]pon the request of a party, the trial judge shall
allow a brief opening statement by counsel for each party prior to
the commencement of the oral questioning phase of the voir dire
process.” (§ 222.5, subd. (d), italics added.) The current version
of section 222.5, however, continues to provide that the scope of
examination conducted by the parties counsel must be within
reasonable limits prescribed by the trial judge in the judge’s
sound discretion. (§ 222.5, subd. (b)(1).)
The current version of section 222.5 is inapplicable here
because the Legislature did not expressly provide that the
amended statute was to operate retroactively. (See Sen. Rules
Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 658
(2017-2018 Reg. Sess.) August 22, 2017; see also People v.
Ledesma (2006) 39 Cal. 4th 641, 664; In re Y.A. (2016) 246
Cal. App. 4th 523, 528.)
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regard to the circumstances of the particular case. . . . [¶] The
trial judge should allow a brief opening statement by counsel for
each party prior to the commencement of the oral questioning
phase of the voir dire process. [¶] The scope of the examination
conducted by counsel shall be within reasonable limits prescribed
by the trial judge in the judge’s sound discretion. In exercising
his or her sound discretion as to the form and subject matter of
voir dire questions, the trial judge should consider, among other
criteria, any unique or complex elements, legal or factual, in the
case and the individual responses or conduct of jurors which may
evince attitudes inconsistent with suitability to serve as a fair
and impartial juror in the particular case. . . . [¶] . . . For
purposes of this section, an ‘improper question’ is any question
that, as its dominant purpose, attempts to precondition the
prospective jurors to a particular result, indoctrinate the jury, or
question the prospective jurors concerning the pleadings or the
applicable law.” (Italics added.)
C. No abuse of discretion
Our Supreme Court has repeatedly affirmed that “it is not
‘a function of the examination of prospective jurors to educate the
jury panel to the particular facts of the case, to compel the jurors
to commit themselves to vote a particular way, to prejudice the
jury for or against a particular party, to argue the case, to
indoctrinate the jury, or to instruct the jury in matters of law.’
[Citation.] Therefore, a question may be excluded if it appears to
be intended solely to accomplish such improper purpose.” (People
v. Williams (1981) 29 Cal. 3d 392, 408, fn. omitted, italics added;
see People v. Carter (2005) 36 Cal. 4th 1114, 1178, citing People v.
Williams with approval.) The law is “clear that ‘[i]t is not a
15
proper object of voir dire to obtain a juror’s advisory opinion
based upon a preview of the evidence.’ ” (People v. Butler (2009)
46 Cal. 4th 847, 860.) Rather, a proper inquiry must be “ ‘
“directed to whether, without knowing the specifics of the case,
the juror has an ‘open mind’ ” ’ ” on the issues presented. (Id. at
p. 859, italics added.)
Here, in order to minimize the risk of improper questioning
by counsel for either party, but especially to reduce the likelihood
that counsel for Edgar might engage in preconditioning, the trial
court decided to limit the amount of case-specific facts the parties
could put before the prospective jurors either through mini-
opening statements and/or their questioning. This decision, as
the relevant version of section 222.5 makes plain, was an act
within the sound discretion of the trial court—a discretion that
the Legislature in 2011 was intent on preserving. That version of
section 222.5 expressly provides that the “scope of the
examination conducted by counsel shall be within reasonable
limits prescribed by the trial judge in the judge’s sound
discretion.” (Italics added.) Moreover, that version of section
222.5 did not require the trial court to allow the parties to make
several or even one brief opening statement4 or to reveal detailed
4 Under the trial court’s local rules, the court had the
option of either “read[ing] to the prospective jurors a brief
statement of the case, or . . . allow[ing] the parties to deliver
mini-opening statements.” (Super. Ct. L.A. County, Local Rules,
rule 3.73 (2016 rev. ed.), italics added.) In other words, when the
trial court decided to limit information about the case to just the
agreed-upon statement of the case, it was acting in conformance
with the local rules.
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facts about the case that supported the parties’ contending
theories.
The trial court’s decision was not only within its discretion,
but it was also grounded in fact. The decision was based on the
court’s independent observations of the first day of voir dire. We
“afford deference to the trial court’s factual determinations”
which are based on firsthand observations not available to us on
appeal. (See generally People v. Barnwell (2007) 41 Cal. 4th 1038,
1053.)
The trial court’s decision was also supported by the
independent statements of prospective juror No. 3, who felt that
his ability to be impartial had been irrevocably compromised by
the detailed nature of the parties’ mini-opening statements. We
defer to the trial court when it has had the opportunity to hear a
witness speak and observe his or her demeanor. (In re Lawley
(2008) 42 Cal. 4th 1231, 1241.)
Finally, following its order, the trial court allowed Edgar’s
counsel considerable leeway with respect to what facts did and
did not constitute case-specific facts. Edgar’s counsel was
permitted to question the second and third venires on a wide
range of facts germane to the case, including Edgar’s age, his
status as a special needs student at a regular school, a 13-year-
old’s ability to evaluate the risk of injury from swinging on a
particular tree limb, school supervision of 13-year olds, traumatic
brain injuries, the principles of comparative negligence as applied
to this case, and compensation for Edgar’s alleged pain and
suffering. In other words, the trial court did not impose or
enforce a complete ban on case-specific facts; rather, it imposed
what it determined to be necessary but limited restraints on
counsels’ examination of the prospective jurors. As a result, any
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potential prejudice to Edgar arising from the order denying
additional mini-opening statements was mitigated by the
liberality with which trial court allowed his counsel to question
the second and third venires.
In short, on the record before us, we cannot conclude that
the trial court’s decision was beyond the bounds of reason.
(People v. Benavides, supra, 35 Cal.4th at p. 88.) Consistent with
the terms of and the legislative intent behind the statute, the
trial court permitted liberal and probing examination of the
prospective jurors within reasonable limits.
II. The Denial of “Cause” Challenges to Jurors M and S
A. Standard of review
A prospective juror may be challenged for cause when the
juror has actual bias, “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.”
(§ 225, subd. (b)(1)(C).)
California courts have long recognized that “a juror is not
disqualified by reason of general bias entertained against a class
of actions, when it appears from his testimony that he can lay
aside that prejudice, and, uninfluenced by it, try the cause at
issue solely upon the evidence and the instructions of the court as
to the law.” (Fitts v. Southern Pacific Co. (1906) 149 Cal. 310,
314.)
“In general, the qualification of jurors challenged for cause
are ‘matters within the wide discretion of the trial court, seldom
disturbed on appeal.’ ” (People v. Kaurish (1990) 52 Cal. 3d 648,
675.) “[A] trial court’s rulings on motions to exclude for cause are
18
afforded deference on appeal, for ‘appellate courts recognize that
a trial judge who observes and speaks with a prospective juror
and hears that person’s responses (noting, among other things,
the person’s tone of voice, apparent level of confidence, and
demeanor), gleans valuable information that simply does not
appear on the record.’ ” (People v. Avila (2006) 38 Cal. 4th 491,
529.)
People v. Weaver (2001) 26 Cal. 4th 876, is illustrative. In
that case, two venirepersons, when questioned by defense counsel
expressed the general belief that the death penalty was the
appropriate penalty for all murders. (Id. at pp. 909-910, 911-
913.) However, both prospective jurors subsequently modified
their views when questioned by the prosecutor, stating that if
chosen they would follow the law as instructed by the trial court.
(Id. at pp. 912-913.) In reaching its decision that the trial court
did not abuse its discretion in denying the defendant’s challenges
to those prospective jurors, our Supreme Court stated, “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. . . . ‘[W]here equivocal or conflicting responses
are elicited regarding a prospective juror’s ability to [apply the
law], the trial court’s determination as to his true state of mind is
binding on an appellate court.’ ” (Id. at p. 910.)
Similarly, in People v. Crittenden (1994) 9 Cal. 4th 83, our
Supreme Court held that the trial court did not err in denying
challenges for cause to two venirepersons who expressed strong
views in favor of the death penalty but who also later stated that
they would follow the law. (Id. at p. 123.) Although both
prospective jurors expressed conflicting views, “[n]either juror
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expressed views indicative of an unalterable preference in favor of
the death penalty, such that their protestations that they would
follow the law would not ‘rehabilitate’ them.” (Ibid., italics
added.) The court further noted, “because both jurors provided
conflicting responses relating to their views concerning the death
penalty, as indicated above, the trial court’s determinations as to
their state of mind, based in part upon their demeanor, are
binding upon this court.” (Ibid.)
B. No abuse of discretion in denying challenges
Here, the trial court did not abuse its considerable
discretion when it denied Edgar’s “for cause” challenges to
Jurors M and S. Although both jurors made conflicting
statements about their ability to remain impartial, neither juror
“expressed views indicative of an unalterable preference” in favor
of LAUSD. (People v. Crittenden, supra, 9 Cal.4th at p. 123.)
Instead, both Jurors M and S expressly stated that they could
20
keep an open mind. Accordingly, we hold that the trial court did
not abuse its discretion by denying Edgar’s “for cause” challenges
to Jurors M and S.5
5 In his opening brief, Edgar also contended that the trial
court erred by denying a challenge for cause to a third
prospective juror, Juror D. However, prospective Juror D did not
serve on the jury, because the parties agreed to dismiss her for
hardship. Our Supreme Court has instructed that a trial court’s
erroneous denial of a “for-cause” challenge cannot constitute
reversible error unless the challenged juror ultimately serves on
the jury. (See People v. Black (2014) 58 Cal. 4th 912, 920; People
v. Yeoman (2003) 31 Cal. 4th 93, 114; see also People v. Baldwin
(2010) 189 Cal. App. 4th 991, 1000-1001 [“the only for-cause
challenges that are relevant on appeal are challenges made to
sitting jurors”].)
In his reply brief, Edgar attempts to remedy the loss of his
argument about prospective Juror D by arguing for the first time
that the trial court erred by denying his “for cause” challenge to
prospective Juror K, who ultimately sat on the jury. We refuse to
consider Edgar’s argument regarding Juror K, because any “
‘such consideration would deprive [LAUSD] of an opportunity to
counter the argument.’ ” (Reichardt v. Hoffman (1997) 52
Cal. App. 4th 754, 764.) “ ‘Obvious considerations of fairness in
argument demand that the appellant present all of his points in
the opening brief. To withhold a point until the closing brief
would deprive the respondent of his opportunity to answer it or
require the effort and delay of an additional brief by permission.
Hence the rule is that points raised in the reply brief for the first
time will not be considered, unless good reason is shown for
failure to present them before.’ ” (Neighbours v. Buzz Oates
Enterprises (1990) 217 Cal. App. 3d 325, 335, fn. 8.) Here, Edgar
has not shown good cause for why he failed to include his
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DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
JOHNSON, Acting P. J.
We concur:
BENDIX, J.
CURREY, J.*
argument about Juror K in his opening brief. In fact, he has not
offered any explanation beyond inadvertence.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Filed 11/15/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
EDGAR A. ALCAZAR, a Minor, etc., B281383
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC534724)
v.
LOS ANGELES UNIFIED SCHOOL ORDER CERTIFYING
DISTRICT, FOR PUBLICATION
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on October 16, 2018, was
not certified for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
______________________ ___________________ ________________
JOHNSON, Acting P. J. BENDIX, J. CURREY, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
23