A convicted sex offender who was found guilty of contacting and communicating with a minor, appealed his conviction when he learned that one of the jurors in his case had applied for a job in the District Attorney’s office. The District Court denied his motion for a new trial due to juror bias, and the Court of Appeal found that it did not abuse its discretion when it did so.

In a partially published opinion by a unanimous three-judge panel of Division Three of California’s First Appellate District, Justice Carin J. Fujisaki, who authored the opinion, said that Juror No. 5, who testified at a post-evidentiary hearing, had provided “substantial evidence” to support the finding of no actual bias. She also denied this was an “extraordinary case in which bias should be implied as a matter of law.”

Johnny Carbajal was found guilty of sex offenses against two friends of his daughters. When the mother of one of his victims, M.J., was having car trouble, he drove the child home after taking her to a store to buy her a new pair of shoes. While driving her, he began to make very inappropriate remarks about his sex life, her body, and how he wanted to “f--- the shit out of her.” She was “uncomfortable” with his comments and suggestions that they meet again.

The next day, she told Carbajal’s daughter, S.C. about her father’s behavior. When the daughter confronted her father, he told her that M.J. had misinterpreted his comments. But M.J. told her mother about the incident and she called the police. During their investigation, they learned of the defendant’s additional inappropriate incidents with a different minor, 15-year-old E.M., who was his daughter’s roommate.

Carbajal was E.M.’s neighbor. He drove her home from school and told her she was “beautiful…sexy” and that she “reminded him of his ex-wife.” He soon asked her if she would do “stuff” with him in the backseat, and he offered her $50 a week if she agreed. She denied his offer but later accompanied him on several errands. He continued to make sexual suggestions about acts for which he would pay her. Also, he repeatedly warned her not to tell anyone. Nevertheless, E.M. did tell Carbajal’s daughter and her grandmother. The grandmother confronted him, but he laughed it off. She did not tell anyone but told E.M. she should move back in with her mother. She later testified at his trial.

After the police investigated M.J.’s mother’s complaints, the Solano County District Attorney’s office charged Carbajal with five counts: one count each of attempted and forcible lewd acts on a child, one count each of contacting and communicating with minors and one count of contacting and communicating with a minor with the intent to commit a sexual offense. The last three counts went to trial.

A three-day trial was held in January 2020. Six months after the trial, the convicted defendant learned from the prosecutor that on the second day of his trial, Juror No. 5 had applied for a job as a victim-witness advocate in the Solano County D.A.’s office. She was hired six months later. When he learned about her application and subsequent hiring, Carbajal appealed his conviction. The court ordered an evidentiary hearing to determine whether Juror No. 5 had demonstrated bias.

During the hearing, the court learned that Juror No. 5, who had been working as a mental health advocate, had been looking for a job in her field before the trial. She said she coincidentally saw the D.A.’s employment posting on the second day of the trial and applied for it immediately because the job opening was soon to expire. She told the court that she had applied for ten additional jobs at the same time and that her decision in Carbajal’s trial was “not influenced” by her employment search.

She also said she had told her supervisor about her jury experience and she denied that her job application interfered with her impartiality. She insisted that she did not vote to hold Carbajal guilty “in the hope it would help her get the job.” The court compared her voir dire answers with her testimony at the evidentiary hearing and found both consistent. The trial court found no bias and found no violation of the defendant’s due process rights.

Justice Fujisaki’s opinion reviewed the legal grounds for granting a new trial, including juror misconduct due to a lack of impartiality. She explained that “actual bias” is a state of mind and raises mixed questions of law and fact. She reviewed a U.S. Supreme Court decision with similar facts and said that here, consistent with the Supreme Court’s standard, the court found the jury “capable and willing to decide the case based on the evidence before it.” She concluded that the trial court’s evidentiary hearing of Juror No. 5 supported a similar conclusion.

She then discussed “implied bias” and again found that Juror No. 5’s case did not demonstrate the kind of extraordinary circumstances that occurred in cases where it was present. The opinion reasoned this conclusion was primarily because the juror was not an actual employee of the D.A.’s office during the trial, and was more a “passive, indifferent job applicant” than someone who was actively pursuing employment with the prosecutor’s office during the trial.

None of the defendant’s additional claims for a new trial were found to merit consideration by the appellate court. They denied that the charges of contacting and communicating with a minor were either vague or overbroad and do not interfere with his right to free speech. They also found that there was sufficient evidence to show that Carbajal’s conversations and offers to the minors were made with the intent to sexually abuse them. The court wrote that any rational trier of fact would reach the same conclusion. In addition, jury instructions on the issue of intent were proper and the defendant’s comments about engaging in sexual acts for pay were not merely “crude jokes.”

The opinion concluded that the effective questioning during the evidentiary hearing proved that there had been no bias and thus did not violate the defendant’s right to a fair trial.