Opinion
B230402
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. DIEGO BIGNONE, Defendant and Appellant.
A. William Bartz, Jr. for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA077689)
APPEAL from a judgment of the Superior Court of the County of Los Angeles, Mark S. Arnold, Judge. Affirmed.
A. William Bartz, Jr. for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant Diego Bignone (defendant) guilty of assault with a deadly weapon—a beer bottle—and the trial court placed him on five years formal probation. On appeal, defendant contends that the trial court abused its discretion when it excluded evidence of antecedent threats and acts of violence by members of the victim's "skater group." Defendant further contends that the trial court committed prejudicial error when it refused to dismiss a juror who, according to defendant, had prejudged the case after the first prosecution witness had testified.
We hold that the trial court did not abuse its discretion when it excluded evidence of antecedent threats and acts of violence by members of the victim's skater group. We further hold that the trial court did not err when it denied defendant's request to dismiss the juror. We therefore affirm the judgment of conviction.
FACTUAL BACKGROUND
A. Prosecution's Case
On March 12, 2010, 18-year old Andreas Ioannou was at a house party on Via Campesina in Palos Verdes Estates. He arrived at the party between 5:30 p.m. and 6:00 p.m. Prior to the incident, he had consumed three shots of vodka and two beers. Most of the other people at the party were drinking.
At some point, Ioannou saw defendant arrive at the party with three or four other people. Defendant appeared angry and ready to fight. He saw Spencer Cotton, threw an empty beer can at him, and Cotton threw the can back at defendant. Defendant then asked Ioannou to hold a case of beer that defendant had with him, and the two men began arguing. Ioannou refused to hold defendant's beer and asked defendant why he was at a high school party. In response, defendant hit Ioannou in the face causing his nose to bleed. After Ioannou was hit, he saw several of his friends hitting defendant. At least three of his friends each hit defendant several times on the back of his head. Ioannou "hopped" over the couch and went to the bathroom to clean up.
At the time, defendant was no longer in high school.
When Ioannou came out of the bathroom, he noticed that the fight had stopped. After about 30 to 40 seconds elapsed, the victim, Parker Smith, stood on the couch and said, "Fuck Diego [defendant]." Ioannou then observed defendant throw a beer bottle at Smith that hit him under his left eye and on the left side of his nose. Smith did not make any moves or gestures toward defendant prior to being hit by the bottle. Ioannou saw Smith hold his face, and a friend took Smith to locate a towel.
Ioannou looked for Smith and saw him with a towel over his eye. When Ioannou went outside, he saw "multiple fights going on." Ioannou was tackled, and then his girlfriend came and drove him home.
Cotton arrived at the party prior to the start of the Lakers game, somewhere between 5:00 p.m. and 6:00 p.m. He started drinking beer shortly after arriving. After the end of the Lakers game, Cotton saw defendant arrive at the party, somewhere between 8:00 p.m. and 9:00 p.m. At the time defendant arrived, there were 20 to 30 people at the party. By that time, Cotton had consumed four or five beers. Defendant came in the front door with four other people. Defendant was holding "his pack of beer."
Cotton stood up from the couch when defendant entered the house. Defendant made eye contact with Cotton and appeared angry. Defendant said, "Let's do this," to Cotton who assumed defendant wanted to fight. Defendant then threw an empty beer can at Cotton that missed him. Defendant asked Ioannou to hold his beer, but Ioannou refused, causing defendant to swing at and hit Ioannou. Ioannou did not swing back, but others "started jumping in." Cotton saw "a bunch of people just getting into it." He was scared and did not want to "jump in" because "[t]here was just a bunch of fists flying." At least five or six people, including defendant, were involved in the melee. All of the people that came with defendant were pushing people or holding people back, and at last one of defendant's group was throwing punches along with defendant. Three of Cotton's friends were throwing punches at defendant and his group. The fight lasted less than a minute.
Smith was standing behind Cotton during the fight, but neither Cotton nor Smith was involved in the fight. Cotton saw his friend being hit and trying to swing back. Defendant then moved toward Cotton and Smith. Smith was standing over Cotton's right shoulder and yelled "Fuck Diego [defendant]." Smith did not lunge towards defendant or swing at him. Cotton observed defendant throw a Dos Equis beer bottle at Smith. When the bottle hit Smith, Cotton and others went to his aid. Cotton did not see what defendant did after he threw the bottle at Smith. After Smith was taken out of the room, Cotton went to a back room and hid. Cotton noticed that the fight had moved outside where "there was a lot of chaos going on . . . ." As Cotton was leaving the scene, he saw the police arrive, but he did not contact police to give a statement because no one asked him to do so.
Smith arrived at the party around 8:15 p.m. and started drinking beer. Smith was sitting on the couch talking with friends after the end of the Lakers game when he saw defendant enter the house with two or three of defendant's friends. Smith heard defendant say, "Are we doing this," and saw him throw a beer can at Cotton. Defendant was angry and "seemed like he was there to get something done."
After defendant threw the beer can, Smith saw him punch Ioannou. A fight then broke out between defendant's group and some of Smith's friends. Smith did not want to be involved in the fight. He stood on the couch for a better view. He saw defendant hitting and being hit by Smith's friends. One of defendant's friends hit Smith's friend J.J. with a bottle.
The fight "kind of stopped for a minute," and Smith thought defendant had left. Smith yelled, "Fuck Diego [defendant]," because he was angry that defendant came to the party without an invitation and ruined it. He made the statement generally to the crowd and had no intention of fighting with defendant who was much larger than Smith.After Smith yelled, there was silence for a few seconds, and then Smith observed defendant pick up a full beer bottle with a cap on it. Defendant threw the bottle at Smith's face and it shattered across his left cheek and cut his eyebrow, nose, and ear. Smith did not make any gestures toward or say anything to defendant before defendant threw the bottle.
Smith was 5'8" and weighed 130 pounds.
After the bottle hit his face, Smith felt beer all over him and he blinked "a couple of times to get beer out of [his] eye." Smith was still holding his beer. Smith's friend Jason Liehr told him he needed to go to the hospital. Smith then noticed that his "whole white shirt was already covered in blood." Liehr took Smith outside and gave him a towel. Smith did not see defendant again after he was hit by the bottle. He was at the hospital for four or five hours.
Elisa Anahalt was an emergency room physician who treated Smith the night of the incident. When she first observed Smith, he had multiple facial lacerations that were actively bleeding. There was a laceration on his left eyebrow approximately three centimeters long. There was also a "half circular" wound on Smith's nose approximately three centimeters long. In addition, he had an irregular wound on his left cheek that also measured three centimeters and a half to one centimeter laceration on his ear. Dr. Anahalt further observed that defendant had bruising on his eye. She put nine stitches in his eyebrow, 11 stitches in his nose, 10 stitches under his left eye, and two in his ear, for a total of 32 stitches. Smith arrived at the hospital at 9:37 p.m. and was discharged at 2:20 p.m.
B. Defense Case
On March 12, 2010, defendant, who was then 20 years old, attended a party to which he had been invited by Josh Shucker. He arrived between 8:15 p.m. and 8:45 p.m. with five of his friends, including Shucker. When they arrived, "[t]here [were] people out on the porch, and [defendant's group] hung out there a little bit, talked to some people, and grabbed [their] beers." Defendant opened and began drinking his first beer of the evening while on the porch.
Two of defendant's friends entered the house and defendant followed 10 to 15 seconds later. As soon as defendant "walked in [he] saw the entire [group of] skater kids right there." In addition to Ioannou, Cotton, and Smith, defendant saw four other members of the skater group. Defendant made eye contact with Cotton who immediately began yelling, "Fuck you. Get the fuck out of here." When defendant responded, "Fuck you, [Cotton]," he was hit by Ioannou. Defendant dropped his beer, turned, and hit Ioannou. Defendant then began "getting punched [from behind] by kids." Ioannou also continued to hit defendant who was "throwing punches" himself. Defendant was "knocked down to the floor where [he began] to get kicked and punched in the back of the head." The incident lasted 15 to 20 seconds after which "it [was] broken up [and he] was helped off the ground."
Defendant, who was dizzy, moved to a small table where he observed Smith jump up on the couch and yell, "Fuck you, Diego [defendant]," as loud as he could. Smith's eyes were wide open and he was "just grinning." Smith had a bottle in one hand and was pointing at defendant with the other. Defendant was "scared . . . [because] [i]t was a very vicious roar that [Smith] was doing." Defendant believed he was about to be attacked again. Defendant noticed a beer bottle on the table, grabbed it, threw it at Smith, and ran from the room. Defendant then ran out the door, saw a friend, and asked for a ride. Defendant went to another house, "hung out there for a little bit, and then [he] got dropped off [at] home around 11:30 p.m." When defendant arrived home, he was informed that the police had called. Defendant called the police the next day and went to the police station the following day.
PROCEDURAL POSTURE
The Los Angeles County District Attorney charged defendant in an information with assault with a deadly weapon, a beer bottle, in violation of Penal Code section 245, subdivision (a)(1). The district attorney also alleged that defendant personally inflicted great bodily injury on Smith within the meaning of section 12022.7, subdivision (a). Following trial, the jury found defendant guilty, but could not reach a verdict on the great bodily injury allegation. At the sentencing hearing, the trial court granted the prosecution's motion to dismiss the great bodily injury allegation, suspended the imposition of sentence, and placed defendant on formal probation for a period of five years.
All further statutory references are to the Penal Code, unless otherwise indicated.
DISCUSSION
A. Exclusion of Evidence
Defendant contends that the trial court violated his due process rights and right to counsel by excluding certain evidence of antecedent threats and acts of violence by members of Smith's skater group. According to defendant, the proffered evidence was relevant and necessary to show defendant's state of mind as it related to his claim of self-defense.
1. Background
Prior to trial, the prosecution made a motion to exclude prior acts of violence committed by prosecution witnesses. In opposition, defendant's counsel explained that he wanted to introduce evidence showing that in July 2009, a fight occurred during which a member of Smith's skater group, Andre LeBrune, received a broken nose and that other members of the group, including Kyle Ortega and Cotton, believed defendant was responsible. In February 2010, at another party attended by members of Smith's skater group, LeBrune struck defendant in the face. According to defendant's trial counsel, the evidence of these prior incidents was relevant to defendant's state of mind and showed what caused him to act in self-defense on the night of the incident—a reasonable fear that the members of LeBrune's skater group, who had already attacked him once that night, would attack him a second time after Smith yelled, "Fuck Diego."
LeBrune was not called as a witness by the prosecution.
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In granting the motion to exclude the proffered evidence, the trial court ruled as follows: "Any prosecution witness who testifies, . . . —if there is any prior history of violence with [defendant] or threats of violence with [defendant], the jury can hear about it. [¶] But violent acts by other people not being called are off limits. That's the ruling. [¶] I think that if [LeBrune] was there that night I would be more inclined to go your way."
Later, during jury selection, defendant's trial counsel indicated that he wanted to introduce certain information that he had discovered on the Facebook pages of Smith, Ortega, and Cotton. "[Defense Counsel]: Okay. My next issue is this. I went on Facebook and I downloaded Facebook on all of these people. The complaining witness, Parker Smith, his Facebook name is Park Drey I think it is. . . . The things that he likes to do, according to Facebook, is to yell, fuck you, at innocent people. He likes to drive around and yell fuck you to people. [¶] I think that should come in to show his credibility, the type of person that he is, that he was ready to take action. [¶] . . . There's another individual by the name of Ortega, Kyle Ortega. He, according to Mr. Smith, was actually involved in swinging at [defendant] on the night in question. He also puts on his Facebook that he likes to drive around and yell fuck you to innocent people; that he says the word fuck you in a mean, angry manner for special people but that he loves to yell fuck you to innocent people. That's one of his fun activities. And I think the jury should hear all of that for credibility, demeanor, everything. That's the reason I'm bringing it up. Especially when we have in the case here the two of them together right there at a fight; one guy yells 'fuck you, Diego.' It all tends to play into it, your Honor. [¶] . . . And then there's the last person, Spencer Cotton. He likes to be 'an asshole' [is] what he puts on his Facebook. He likes to be an asshole."
After hearing argument, the trial court excluded the Facebook information and explained that ruling as follows: "The Court: I believe that any prior conduct like fuck you or anything like that as it relates to [defendant] by any of the prosecution witnesses is admissible. Anything that was done to him or in his presence like this I think the jury should hear about. But the fact that Smith likes to say fuck you to people as he's driving around, I think whatever relevance that has or whatever probative value is significantly outweighed by the prejudicial evidence. [¶] And I'm not sure that it's even relevant, other than to indicate to the jury that these people are jerks. It sounds like they are jerks and I don't want—I want the jury focusing on whether they're telling the truth or not, not whether they're jerks."
2. Analysis
In response to the charge of assault with a deadly weapon, defendant claimed self-defense. "'To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' (People v. Goins (1991) 228 Cal.App.3d 511, 516 , italics in original.) The threat of bodily injury must be imminent (In re Christian S. (1994) 7 Cal.4th 768, 783 [30 Cal.Rptr.2d 33, 872 P.2d 574]), and '. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]' (People v. Pinholster (1992) 1 Cal.4th 865, 966 [4 Cal.Rptr.2d 765, 824 P.2d 571]; see also People v. Clark (1982) 130 Cal.App.3d 371, 380 ; Civ. Code, § 50 ['Any necessary force may be used to protect from wrongful injury the person . . . of oneself . . . .']; Pen. Code, §§ 692 ['Lawful resistance to the commission of a public offense may be made: [¶] 1. By the party about to be injured . . . .'], 693 ['Resistance sufficient to prevent the offense may be made by the party about to be injured: [¶] 1. To prevent an offense against his person . . . .'].) [¶] In People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083 [56 Cal.Rptr.2d 142, 921 P.2d 1], we considered the reasonableness requirement in the context of a murder charge. We concluded that, although the test is objective, reasonableness is determined from the point of view of a reasonable person in the defendant's position. The jury must consider all the facts and circumstances it might '"expect[] to operate on [defendant's] mind . . . ." [Citation.]' (Id. at p. 1083.)" (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 (Minifie).)
"'A person claiming self-defense is required to "prove his own frame of mind," and in so doing is "entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear." (People v. Davis [(1965) 63 Cal.2d 648, 656 (47 Cal.Rptr. 801, 408 P.2d 129)].) The defendant's perceptions are at issue, and threats from a family and its friends may color a person's perceptions of that group no less than threats from an individual may color a person's perceptions of that individual. A defendant who testifies that he acted from fear of a clan united against him is entitled to corroborate that testimony with evidence "tend[ing] in reason to prove" that the fear was reasonable. (Evid. Code, § 210 [defining relevant evidence].) Threats from the group on the defendant's life would certainly tend in reason to make the defendant fearful. This is especially true where the group has a reputation for violence, and that reputation is known to the defendant. Such threats are relevant to the defendant's state of mind—a matter "of consequence to the determination of the action" (ibid.)—and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant's actions were justified." (Minifie, supra, 13 Cal.4th at pp. 1065-1066.)
But "'a defendant's evidence of self-defense is subject to all the normal evidentiary rules, including Evidence Code sections 350 [only relevant evidence is admissible] and 352.' (In re Christian S., supra, 7 Cal.4th at p. 783.) Evidence of third party threats is relevant only if other evidence shows fear of imminent harm. (Ibid.) Even then its probative value may be slight. The Attorney General observes that fear due to threats from third parties is more 'attenuated' than fear due to threats from the victim. The observation has merit; third party threats inherently carry less weight than threats from the victim. This attenuation does not justify excluding the evidence categorically, but it may be considered on a case-by-case basis. The more vague the threats, and the weaker the logical link between them and the defendant's actions, the more the court may be justified in excluding them. Similarly, evidence of a third party's reputation for violence may be particularly susceptible to exclusion. (See, e.g., People v. Gonzales (1967) 66 Cal.2d 482, 500 [58 Cal.Rptr. 361, 426 P.2d 929] [trial court properly determined that a third party's reputation for violence seven years previously 'was too remote to have present probative value'].) [¶] Rulings under Evidence Code section 352 come within the trial court's discretion and will not be overturned absent an abuse of that discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 609 [25 Cal.Rptr.2d 390, 863 P.2d 635]; People v. Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99].)" (Minifie, supra, 13 Cal.4th at p. 1070.)
In this case, the trial court found that the evidence concerning defendant's prior violent incidents with LeBrune, a member of Smith's skater group, was not sufficiently relevant to defendant's state of mind toward Smith on the night of the incident. Similarly, the trial court found that the Facebook evidence about Smith, Cotton, and Ortega was attenuated, at best, and more prejudicial than probative. Neither of those findings was an abuse of discretion.
As the court in Minifie, supra, 13 Cal.4th 1055 emphasized, defendant's proffered evidence of self-defense was subject to the limitations of Evidence Code sections 350 and 352, meaning the evidence had to be relevant, and that relevance had to outweigh any prejudicial impact the evidence might have on the jury. As to the evidence of the two prior incidents between LeBrune and defendant, there was no evidence offered by defendant that LeBrune or any member of the skater group had threatened defendant. Thus, although the evidence may have been relevant as to LeBrune's reputation for violent encounters with defendant, such third-party evidence of reputation is particularly susceptible to exclusion due to the weak logical link between that evidence and defendant's actions toward Smith on the night of the incident. (Minifie, supra, 13 Cal.4th at p. 1070.) Moreover, there was no evidence that LeBrune was at the scene on the night of the incident. As the trial court noted, had LeBrune been at the scene on the night of the incident, the link between his two previous violent encounters with defendant and defendant's state of mind toward the victim that night might have been stronger. Similarly, there was no significant evidence that defendant was in imminent harm from Smith before the bottle was thrown. All the prosecution witnesses testified that Smith was not in the fight that preceded the bottle throwing incident and that Smith had made no threatening moves towards defendant prior to yelling, "Fuck Diego." That Smith and others at the scene were members of the same skater group as LeBrune, and that they may have had knowledge of the two encounters between LeBrune and defendant, was too attenuated to justify admission of the evidence concerning the prior incidents with LeBrune.
As to the Facebook evidence showing that Smith and Ortega liked to say "fuck you" to innocent people and that Cotton liked being an "asshole," the trial court found it to be vague and more prejudicial than probative. That evidence, at best, showed that the three young men in question may generally have been offensive, rude, and obnoxious, but it did little to show defendant's specific intent toward Smith on the night in question. Indeed, there was no showing that defendant ever witnessed any of the conduct in issue or that he was otherwise aware of it. None of that conduct constituted specific threats of violence, much less threats of violence toward defendant. Similarly, that conduct did not suggest or imply that the three men in question had reputations for violence in the community. Moreover, defendant did not offer the Facebook evidence to support his state of mind, but rather as credibility and demeanor evidence. Thus, it was reasonable for the trial court to conclude that the evidence merely suggested that the three men were "jerks" and that the evidence was therefore more prejudicial than probative. Accordingly, the trial court did not abuse its discretion by excluding it.
B. Juror Misconduct
Defendant argues that the trial court should have dismissed a juror whom the court clerk overheard saying after the prosecutor's first witness, "[D]o we have to go through all this? Can't we just render our verdict now?" According to defendant, that statement by the juror showed that she had prejudged the case against him and, by allowing her to continue to serve on the jury, the trial court deprived him of his right to a fair trial.
1. Background
After Ioannou, the prosecution's first witness, testified, the following proceedings took place outside the presence of the jury. "The Court: See if Juror No. 4 is there. If so, hold her up. [¶] [The court clerk] mentioned—on the record. [¶] [The court clerk] mentioned this to me that when she went in to brief the jurors in the jury deliberation room, Juror No. 4 stated to [the court clerk]-- [¶] The Clerk: Not quote/unquote. But like do we have to go through all of this? Can't we just render our verdict now? [¶] The Court: I assume that she was kidding. But I wanted to bring that to counsel's attention. And I think we should make inquiry of the juror. [¶] [Defense Counsel]: I agree, your Honor. [¶] [Prosecutor]: Agree. [¶] The Court: Let's see if the bailiff was able to get her. [¶] The Clerk: Would you like to know what I said to her? [¶] The Court: Yes. [¶] The Clerk: I told her you guys haven't—none of you have heard the case yet. You have to wait until all of the jurors are deliberating and then make that determination of what your verdict is. . . . [¶] The Court: Juror No. 4, hi. I wanted to ask you something. You actually came out with the other jurors and we began with the opening statements and the trial. Did you make—did you ask [the court clerk] a question about, well, do we have to go through this and can we render our verdict now? [¶] Juror No. 4: That's not what I asked. I asked do you ever come to a verdict? I didn't—I have never done this before. So I didn't know if you ever come to a verdict, you know, when you're in the deliberation room. I don't know. [¶] The Court: You mean before—while the trial is going on? [¶] Juror No. 4: I guess I misunderstood. [¶] The Court: Tell you what. Pretend I'm [the court clerk]. Ask me what you asked [the court clerk]. [¶] Juror No. 4: I said, do you ever—does the jury ever come to a verdict like as things are happening? [¶] The Court: You mean while the trial is ongoing? [¶] Juror No. 4: I understand it doesn't work that way, that you listen to everything then. I didn't know if at some point sometimes you just ever talk about it when you're in there. [¶] The Court: You're not supposed to. [¶] Juror No. 4: Okay. Well, that's what I didn't know. [¶] The Court: You're not supposed to talk about the case with anyone. [¶] Juror No. 4: Even in the deliberation room? [¶] The Court: Even in the deliberation room until all of the witnesses have testified. [¶] Juror No. 4: Well, that answers my question. [¶] The Court: You've heard the jury instructions and you've heard the final arguments of the lawyers. [¶] Juror No. 4: Yes, yes. [¶] The Court: That's when you deliberate. But until that time, you don't talk about it. [¶] Juror No. 4: No, I just fully didn't get the process. [¶] The Court: And as far as arriving at a verdict beforehand, that shouldn't happen because you're not supposed to talk about it. [¶] Juror No. 4: Right. I get that now. [¶] The Court: And you also. [¶] Juror No. 4: And I didn't know that you don't ever talk about it. [¶] Okay. Yeah. You can't talk about it and you're supposed to be open-minded. [¶] Juror No. 4: Well, yeah. [¶] The Court: I mean, keep an open mind. [¶] Juror No. 4: Yes. [¶] The Court: Don't decide the case until we tell you, okay, now you can start deciding the case. [¶] Juror No. 4: I understand that. I didn't know if they had ever asked you to decide something along the way. [¶] The Court: No, no, no. You're not asked to make a decision until the very end. [Defense counsel] do you have any questions? [¶] [Defense Counsel]: No questions. [¶] The Court: [Prosecutor] anything? [¶] Prosecutor]: No questions. [¶] The Court: Okay, we just wanted to clarify what was said. And you've done that. And thank you. We'll see you tomorrow. [Whereupon proceedings were held in open court outside the presence of the jury as follows]: [¶] The Court: I'm surprised that question would be asked because I think we were all pretty clear during jury selection that you've got to keep an open mind. [¶] [Defense Counsel]: Well, there would be a defense motion to remove her from the jury on that very reason, judge. That was running through my head. We went over the presumption of evidence, the presumption of innocence. You even specifically stated the presumption of innocence going back there. [¶] And I don't know if she wants to get off the jury or if she has a preconceived notion. I don't know if I upset her. I don't know if [the prosecutor] did. But I think she should go. [¶] [Prosecutor]: Quite honestly I don't know if there's any legal grounds to remove her. So I'll just-- [¶] The Court: Well, to remove a juror after the jury is sworn, it has to be shown that as a demonstrable reality she cannot do her job. That has to be demonstrated. [¶] I think that she has never been a juror before. I think—you know, she might be naive. It appears to me that it was a question innocently asked. [¶] She's established now that she understands that she's not to discuss the case with anybody and she's not to form or express any opinions until deliberations. [¶] So I don't think it's been demonstrated by demonstrable reality she can't do her job. [¶] So the request to excuse her is denied."
2. Analysis
The rules governing the dismissal of a juror after the jury is sworn are well established. Section 1089 provides in pertinent 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, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (See People v. Allen (Dec. 5, 2011, S066939) __ Cal.4th __ .) However, "[r]emoving a juror is . . . a serious matter, implicating [a defendant's] constitutional protections . . . . While a trial court has broad discretion to remove a juror for cause, (fn. omitted) it should exercise that discretion with great care. [¶] We have given two different formulations of the applicable standard on review. On the one hand, we have stated that a court's decision to remove a juror is to be upheld if supported by 'substantial evidence.' (See, e.g., People v. Williams (2001) 25 Cal.4th 441, 448 [106 Cal.Rptr.2d 295, 21 P.3d 1209].) 'Substantial evidence' has been characterized as a 'deferential' standard. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1140 [32 Cal.Rptr.3d 759, 117 P.3d 476].) (Fn. omitted.) [¶] On the other hand, we have stated, often in the same opinion, that a juror's disqualification must appear on the record as a '"'"demonstrable reality."'"' ([People v.] Cleveland [(2001)] 25 Cal.4th [466,] 474; see People v. Marshall (1996) 13 Cal.4th 799, 843 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; see also [People v.] Boyette [(2002)] 29 Cal.4th 381.) The demonstrable reality standard traces back to Justice Mosk's majority opinion in People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537]. This standard 'indicates that a stronger evidentiary showing than mere substantial evidence is required to support a trial court's decision to discharge a sitting juror.' (Cleveland, supra, at p. 488 (conc. opn. of Werdegar, J.).)" (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
"The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied." (Barnwell, supra, 41 Cal.4th at p. 1052-1053.) When, as here, the trial court denies a motion to discharge a juror, that ruling will not be reversed unless it is shown on review to a "demonstrable reality" that "the juror was unable to perform his duty as a juror." (People v. Wilson (2008) 44 Cal.4th 758, 814.)
"The evidence bearing on the question whether a juror has exhibited a disqualifying bias during deliberations may be in conflict. Often, the identified juror will deny it and other jurors will testify to examples of how he or she has revealed it. (See, e.g., [People v.] Thomas [(1990)] 218 Cal.App.3d 1477, 1482-1485 [bias against police officers].) In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony. The trial court may also draw upon the observations it has made of the jurors during voir dire and the trial itself. Naturally, in such circumstances, we afford deference to the trial court's factual determinations, based, as they are, on firsthand observations unavailable to us on appeal." (Barnwell, supra, 41 Cal.4th at p. 1053.)
Here, the record reflects that the trial court carefully examined the juror in question about the juror's comment to the clerk and that the evidence of what was said was in conflict. Based on the juror's responses, the trial court concluded that although the juror may have been "naïve" due to her lack of jury experience, the court believed her clarified responses were truthful and was therefore convinced that she understood and could perform her duties. Because we defer to such credibility determinations by the trial court, we conclude that the record does not reflect a "demonstrable reality" that the juror in question was unable to perform her duties. We therefore affirm the trial court's ruling denying defendant's motion to disqualify the juror.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J. We concur:
TURNER, P. J.
KRIEGLER, J.