What is the test for dismissing a jury in a sexual assault case where a prospective juror said in a voir dire that children never lie about being sexually abused?

"A juror's receipt or discussion of evidence not submitted at trial constitutes misconduct." (People v. Dykes (2009) 46 Cal.4th 731, 809.) "Juror misconduct raises a rebuttable presumption of prejudice; a trial court presented with competent evidence of juror misconduct must consider whether the evidence suggests a substantial likelihood that one or more jurors were biased by the misconduct." (Ibid.) A trial court's denial of a motion to dismiss an entire jury panel based upon a prospective juror's comments that allegedly expose the panel to bias is reviewed for abuse of discretion. (People v. Nguyen (1994) 23 Cal.App.4th 32, 41.)

Appellant contends the trial court erred in refusing to dismiss the jury venire because "[a]lthough only a handful of prospective jurors acknowledged that they heard the offending juror's remarks, there is an intolerable risk that other jurors were tainted by the juror's inappropriate comments." We disagree. Appellant's assertion that other prospective jurors were tainted but concealed the information from the trial court is entirely speculative. Appellant cites no authority that a speculative possibility of exposure to prejudicial information compels a trial court to dismiss a jury venire. The case appellant relies upon, Mach v. Stewart (9th Cir. 1997) 137 F.3d 630, is plainly distinguishable. There, a prospective juror who had worked with children as a social

Page 9

worker made four separate statements in front of the jury pool that "she had never been involved in a case in which a child accused an adult of sexual abuse where that child's statements had not been borne out." (Id. at pp. 632-633.) Further, the trial court failed to conduct further voir dire to determine whether the panel had been "infected by [the prospective juror's] expert-like statements." (Id. at 633.) The appellate court found error because, "Given the nature of [the prospective juror's] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated, we presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused." (Ibid.) In contrast, in the present case the problematic statements were not made before the whole jury pool and the trial court made a diligent effort to uncover any prospective jurors exposed to them. (See People v. Medina (1992) 51 Cal.3d 870, 889 ["discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant"].)