Filed 5/2/17 P. v. Maldonado 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
SANTOS CIPRIANO MALDONADO,
Defendant and Appellant.
F071380
(Super. Ct. No. BF157554A)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Steven M.
Katz, Judge.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

*Before Gomes, Acting P.J., Franson, J. and Peña, J.
2.
INTRODUCTION
Appellant Santos Cipriano Maldonado was convicted of attempted second degree
robbery. It also was found true Maldonado had committed the offense while out on bail
and had served three prior prison terms.
Maldonado contends the trial court erred when it denied his motion to excuse a
juror for cause after the jury had been sworn. He also contends there is sentencing error.
We reject his contention the trial court erred in refusing to dismiss the juror, but agree the
matter must be remanded for the trial court to calculate and award preconviction custody
and conduct credits.
FACTUAL AND PROCEDURAL SUMMARY
Around 11:40 a.m. on October 2, 2014, Maldonado entered a Bank of America in
Bakersfield and approached a teller window. Maldonado placed his left hand on the
counter and kept his right hand in his pocket. The teller, Daisy Mercado, asked
Maldonado what she could do for him and Maldonado replied he needed several hundred
dollars.
Mercado asked for Maldonado’s debit card; he told her he did not have one.
Mercado asked Maldonado for an account number or identification card, which
Maldonado did not provide. Mercado asked him to provide his social security number in
order to locate his bank records; Maldonado did not provide this information. Mercado
made eye contact with another employee, John Velasquez, who came over to assist.
Maldonado ignored Velasquez.
Maldonado then stated in a low voice, “This is a stick up.” Mercado said, “Excuse
me?” Maldonado repeated his statement. Believing Maldonado was attempting to rob
the bank, Mercado activated the silent alarm and walked away from the window to notify
her supervisor.
3.
Maldonado started to leave the bank; Velasquez followed him. As Maldonado
exited the bank, Velasquez locked the doors after Maldonado walked out. Velasquez saw
Maldonado walk into a nearby alley.
Bakersfield police detective Paul Yoon responded to the scene about 30 to 40
minutes later. Velasquez and Mercado subsequently identified Maldonado from
photographs.
About 14 hours later, Yoon interviewed Maldonado at the police station.
Maldonado admitted he did not have an account with the bank but had asked to withdraw
funds because he needed money. He told Mercado, “This is a stick-up,” and he used the
word “stick-up” twice. He had a note in his wallet with the words “Give me the money”
on it but claimed he was “kidding” and did not intend to rob the bank.
On March 4, 2015, a jury found Maldonado guilty of attempted second degree
robbery. In a bench trial, it was found true that Maldonado committed the offense while
out on bail and had suffered three prison priors.
Maldonado was sentenced on April 2, 2015; the term imposed was to be served
subordinate to the sentence imposed in Kern Superior Court case No. BF156024A. A
notice of appeal was filed that same day.
DISCUSSION
Maldonado contends the trial court erred in denying his motion to dismiss Juror
No. 10 for bias. He also contends the trial court erred in sentencing and the abstract of
judgment must be amended.
I. No Juror Bias
A. Standard of Review
It is fundamental that a criminal defendant has a constitutional right to be tried by
a fair and impartial jury, and the process of voir dire plays an essential role in securing
this right. (In re Hitchings (1993) 6 Cal.4th 97, 110.)
4.
“‘… Voir dire examination serves to protect [a criminal defendant’s right to a fair
trial] by exposing possible biases, both known and unknown, on the part of potential
jurors. Demonstrated bias in the responses to questions on voir dire may result in a
juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause
may assist parties in exercising their peremptory challenges. The necessity of truthful
answers by prospective jurors if this process is to serve its purpose is obvious.’
[Citation.] [¶] A juror who conceals relevant facts or gives false answers during the voir
dire examination thus undermines the jury selection process and commits misconduct.
[Citations.]” (People v. Hitchings, supra, 6 Cal.4th at pp. 110-111, fn. omitted.)
“When misconduct involves the concealment of material information
that may call into question the impartiality of the juror, we consider the
actual bias test .… ‘Although intentional concealment of material
information by a potential juror may constitute implied bias justifying his
or her disqualification or removal [citations], mere inadvertent or
unintentional failures to disclose are not accorded the same effect. “[T]he
proper test to be applied to unintentional ‘concealment’ is whether the juror
is sufficiently biased to constitute good cause for the court to find under
Penal Code sections 1089 and [former] 1123 that he is unable to perform
his duty.”
[1]
[Citation.] [¶] Whether a failure to disclose is intentional or
unintentional and whether a juror is biased in this regard are matters within
the discretion of the trial court. Except where bias is clearly apparent from
the record, the trial judge is in the best position to assess the state of mind
of a juror or potential juror on voir dire examination. [Citations.]’
[Citation.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
“Before an appellate court will find error in failing to excuse a seated juror, the
juror’s inability to perform a juror’s functions must be shown by the record to be a
‘demonstrable reality.’ The court will not presume bias, and will uphold the trial court’s

1Penal Code section 1089 states in part: “If at any time, whether before or after the final
submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to
the court is found to be unable to perform his or her duty, … the court may order the juror to be
discharged and draw the name of an alternate .…”
5.
exercise of discretion … under [Penal Code] section 1089 if supported by substantial
evidence.” (People v. Holt (1997) 15 Cal.4th 619, 659.)
B. Factual Summary
Included in the jury pool was Juror No. 10, initially Juror No. 3748063. Juror
No. 10 was admitted to law school and would begin attending in the fall, his father’s store
had been robbed several times, and he had a best friend whose father had worked for the
Kern County Sheriff’s Department. When asked, Juror No. 10 stated he would judge the
case only on the evidence presented and the applicable law, he would be fair to both
sides, and he would not allow the store robberies or his friend’s connection to the
sheriff’s department to influence him.
The People asked Juror No. 10 if he intended to specialize in any area of the law
after graduation. Juror No. 10 replied, “Corporate.” Juror No. 10 indicated that on some
occasions, the robbers of his father’s store were not caught. Sympathy and bias would
not affect how he evaluated the evidence or voted on the case.
Defense counsel asked Juror No. 10 if the robberies of his father’s store would
cause him to be biased in favor of law enforcement; Juror No. 10 replied it would not.
Juror No. 10 also responded to a question about Maldonado’s tattoos, stating the
“teardrop on the eyelid … commonly signifies how many people you’ve murdered.”
Juror No. 10 stated it made him think Maldonado “has some type of a prior case,” but
“his past has no correlation as to the events that happened right now.”
Due to Juror No. 10’s comment about the teardrop tattoo, defense counsel moved
for a mistrial or, in the alternative, an admonishment to the jury. The trial court
admonished the jurors. When asked if he could set aside his thoughts about Maldonado’s
tattoos and judge the case only on the evidence and law, Juror No. 10 responded
affirmatively.
6.
Outside the presence of the jurors, the trial court heard argument on the motion for
a mistrial and ultimately denied the motion. Defense counsel did not seek to dismiss
Juror No. 10 by use of a peremptory challenge. Twelve jurors, including Juror No. 10,
were sworn and impaneled.
After two alternate jurors were selected, sworn, and impaneled, the trial court
excused the jury. Juror No. 10 then notified the judicial officer that he was six months
away from entering law school and had planned to apply for an internship with the
district attorney’s office. Juror No. 10 inquired if he was able to do so while sitting on
the jury, or if he had to wait until the trial concluded. The trial court noted no one had
inquired along these lines during voir dire.
The trial court informed Juror No. 10 that he could apply to any internship, but
that “you can’t let that influence your decision, in any way, in this case.” The trial court
further stated, “You can’t try to get any favor from anybody in this case because you’re
looking for some potential internship somewhere.” Juror No. 10 replied, “Of course not.”
The People inquired if Juror No. 10 had already applied for an internship to the
district attorney’s office or if he planned to do so in the future. Juror No. 10 stated he
“[was] going” to apply. Defense counsel asked Juror No. 10 if he planned to work in
criminal law after graduation and Juror No. 10 replied, “No.” Juror No. 10 then stated,
however, that “nothing is set in stone” and he was “open to it.” Juror No. 10 stated the
internship would be “a good niche that I had thought I could have on my resume.”
Defense counsel inquired, “prosecution of cases?” Juror No. 10 replied, “Yes.”
The trial court told Juror No. 10 he could not “favor [the prosecution]” because of
a possible internship and could not “disfavor” defense counsel and Maldonado. The trial
court then inquired, “Do you understand that?” Juror No. 10 replied, “I understand, yes.”
After this exchange on February 26, 2015, the proceedings ended for the day.
On March 2, 2015, defense counsel moved to dismiss Juror No. 10 for cause,
based upon the juror indicating he planned to apply to the district attorney’s office for an
7.
internship in the future. Defense counsel stated Juror No. 10 did not disclose during voir
dire that he planned to apply for the internship, and had defense counsel known this, the
defense would have excused the juror.
The People argued Juror No. 10 should not be dismissed as he had not been asked
about internships or a possible interest in criminal law on voir dire. He had stated
numerous times he could be fair and judge the case on the evidence and law.
The trial court noted the defense had initially challenged Juror No. 10 after the
remark about the teardrop tattoo, but did not exercise a peremptory challenge against this
juror when the challenge for cause was denied. The defense had two peremptory
challenges remaining at that time. The trial court then took a brief recess to “take a look”
at the matter.
The trial court stated that in order to grant the request to dismiss Juror No. 10, the
court would have to find he is “incapable of performing the duties of a juror without
prejudice.” The trial court also stated the basis for dismissal could only be the statement
about applying for an internship with the district attorney, not any comments during voir
dire.
The trial court denied the motion to dismiss the juror for cause, noting Juror
No. 10 had affirmed he would not favor one side or the other but would judge the case on
the evidence.
C. Analysis
A criminal defendant has a constitutional right to a unanimous verdict by an
impartial jury. (People v. Wilson (2008) 44 Cal.4th 758, 822.) Good cause exists to
discharge a sitting juror when he or she exhibits bias or a fixed prejudgment of issues, or
an inability or refusal to deliberate, to apply the law as instructed by the trial court, or to
perform various other duties. (People v. Feagin (1995) 34 Cal.App.4th 1427, 1435–
1437.) Grounds for discharging a juror may be established by his or her statements or
8.
conduct. (People v. Nesler (1997) 16 Cal.4th 561, 581.) The decision whether to retain
or dismiss a juror ultimately rests within the discretion of the trial court. If any
substantial evidence exists to support the trial court’s exercise of its discretion pursuant to
Penal Code section 1089, its decision will be upheld on appeal. (People v. Bradford
(1997) 15 Cal.4th 1229, 1351.)
Maldonado alleges Juror No. 10 concealed a pro-prosecution bias. The underlying
facts, however, do not support a prima facie case of juror bias. There is nothing to
suggest Juror No. 10 lied about or deliberately concealed information during voir dire in
violation of his oath as a juror. (People v. Blackwell (1987) 191 Cal.App.3d 925, 929
[intentional concealment of relevant facts or giving false answers in voir dire is
misconduct].) Juror No. 10’s comments indicated only that he raised a potential issue—
his intent to apply for an internship with the district attorney’s office—when no voir dire
questions brought out this information. This record leads us to conclude Juror No. 10’s
failure to report, during jury selection, his intention to seek an internship with the district
attorney’s office was not a deliberate attempt to conceal bias.
Further, there is no evidence Juror No. 10’s intention masked an actual proprosecution
bias. (See People v. Merriman (2014) 60 Cal.4th 1, 96-98 [juror who failed
to reveal in response to written question, and to affirmatively disclose during voir dire,
that she had distant relative in law enforcement, made honest mistake that did not hide an
actual pro-law-enforcement bias].)
On the contrary, the fact Juror No. 10 voluntarily disclosed he intended to seek an
internship with the district attorney’s office indicates any failure to do so earlier was
inadvertent, and he was attempting to perform his duties in good faith and was not biased.
(See In re Hamilton (1999) 20 Cal.4th 273, 300 [“good faith when answering voir dire
questions is the most significant indicator that there was no bias”].) “If Juror [No. 10]
had formed improper opinions about the case and … act[ed] in ways prejudicial to the
defense, common sense suggests that he would have simply remained silent,” rather than
9.
publicly revealing his intention before presentation of evidence began. (People v. Ray
(1996) 13 Cal.4th 313, 343.) Accordingly, under Hamilton, reversal of Maldonado’s
conviction is not warranted and the trial court did not err in refusing to dismiss Juror
No. 10. (See In re Hamilton, supra, at p. 300.)
Juror No. 10’s comments do not raise a presumption of prejudice that has not been
rebutted. The cases establishing the presumption of prejudice involve actual misconduct,
or, put differently, “‘true jury misconduct.’” (People v. Cooper (1991) 53 Cal.3d 771,
835, quoting People v. Boyd (1979) 95 Cal.App.3d 577, 585.) “When a person violates
his oath as a juror, doubt is cast on that person’s ability to otherwise perform his duties.
[Citation.] The presumption of prejudice is appropriate in those situations.” (People v.
Cooper, supra, at pp. 835–836.) Here, there is no evidence of deliberate concealment of
a material fact in jury selection or thereafter, nor of actual bias, and a presumption of
prejudice is not raised. (See People v. Merriman, supra, 60 Cal.4th at pp. 96–98 [no
presumption was applied where there was no deliberate concealment and no actual bias].)
Here, Juror No. 10 affirmed multiple times that he would judge the case based
upon the evidence and applicable law. This juror also affirmed that he would apply the
beyond-a-reasonable-doubt standard of proof, he would acquit if the People failed to
prove an element of their case, he understood Maldonado had a right not to testify, he
would not confer any additional credibility on witnesses because they were in law
enforcement, and he would judge all witnesses by the same standard.
We conclude there was no abuse of discretion in refusing to dismiss Juror No. 10
for bias. (People v. Stewart (2004) 33 Cal.4th 425, 509-510 [no prejudice where
misconduct so trifling it could not in the nature of things have affected fairness of trial];
People v. Loot (1998) 63 Cal.App.4th 694, 698 [juror’s misconduct was a “technical
violation” raising little possibility of actual prejudice].)
10.
II. Sentence and Abstract of Judgment
Maldonado contends the trial court failed to impose an aggregate sentence and to
award custody and conduct credits. An aggregate sentence was imposed, however, the
trial court failed to award custody and conduct credits.
The probation report noted Maldonado committed the instant offense while out on
bail in case No. BF156024A and Maldonado was sentenced to a term of six years in
prison for the offense in that case. The probation report recommended a total term of
three years eight months be imposed for the current offenses and enhancements, to be
served consecutive to the term imposed in case No. BF156024A. At sentencing, the trial
court imposed an aggregate term of nine years eight months. The trial court did not
award any custody or conduct credits.
The abstract of judgment sets forth only the terms imposed for the instant offense
and enhancements, with the statement at item “8. Other orders” that the sentence is to be
served “CONSECUTIVE TO BF156024A.” Custody credits are noted as “0” at item 14.
Penal Code section 1170.1, subdivision (a) provides that whenever a person is
convicted of two or more felonies, whether in the same or different proceedings, the
aggregate term for all the convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for enhancements. California Rules
of Court, rule 4.4522 provides that when a determinate sentence is imposed under section
1170.1, subdivision (a), and is consecutive to one or more determinate sentences
previously imposed, the trial court shall pronounce a single, aggregate term stating the
result of combining the previous and current sentences. The trial court is also to make a
determination as to which count shall be principal term. (Rule 4.452(2).)
Maldonado concedes the trial court “technically” imposed a single, aggregate
term. The trial court pronounced an aggregate sentence of nine years eight months. A

2All references to rules are to the California Rules of Court unless otherwise specified.
11.
sentence of one-third the midterm was imposed for the attempted robbery conviction,
which constitutes a subordinate term, thus making the six-year term in case
No. BF156024A the principal term. (People v. Saibu (2011) 191 Cal.App.4th 1005,
1013.) The term imposed for the attempted robbery conviction and enhancements was
ordered to run consecutive to the term imposed in case No. BF156024A.
The abstract of judgment specifically notes the term for the attempted robbery and
enhancements is to run consecutive to the term imposed in case No. BF156024A.
Maldonado, however, maintains the trial court was required to resentence him on case
No. BF156024A at the same time sentence was imposed for the attempted robbery and to
then include on one abstract the term imposed in the instant case and case
No. BF156024A. As authority for this proposition, he cites rule 4.452.
In our view, however, nothing in the language of rule 4.452 requires a trial court to
completely set forth the sentence imposed in another case in the abstract; that rule
requires the trial court to make a determination as to principal and subordinate terms and
impose an aggregate sentence. The trial court complied with rule 4.452 when it imposed
one-third the midterm for the attempted robbery offense, which is a subordinate term, and
specifically ordered the sentence to run consecutive to the six-year term imposed in case
No. BF156024A.
The trial court was required to calculate and award custody and conduct credits
and to include the credits on the abstract of judgment. (People v. Saibu, supra, 191
Cal.App.4th at pp. 1012–1013.) It was error to fail to do so. (People v. Phoenix (2014)
231 Cal.App.4th 1119, 1126–1127.)
Because the matter must be remanded for the trial court to calculate and award
credits and prepare an amended abstract of judgment, the trial court may wish to prepare
a single abstract setting forth the sentence in this case and in case No. BF156024A in
order to avoid confusion. (People v. Phoenix, supra, 231 Cal.App.4th at pp. 1126–1127.)
12.
DISPOSITION
The judgment is affirmed. The matter is remanded for calculation of custody and
conduct credits and preparation of an amended abstract of judgment. The amended
abstract of judgment shall be disseminated to the appropriate authorities.