Opinion
E067642
05-31-2018
THE PEOPLE, Plaintiff and Respondent, v. TYREE MARQUEZ BURT, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1604019) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Tyree Marquez Burt jumped over a fence and entered the backyard of Dennie Ray Creer's home. Creer's neighbors observed defendant in the backyard and asked if he knew Creer. Defendant ran away. Creer was asleep inside but when he awoke he discovered the screen on one of his windows had been removed and the blinds had been pushed in.
Defendant was found guilty of one count of first degree burglary while the home was occupied (Pen. Code, § 459). In a bifurcated proceeding, after he waived his right to a jury trial, defendant admitted he had suffered one prior serious and violent felony conviction (§§ 667, subds. (a), (e) & (c)(1), 1170.12, subd. (c)(1)) and served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to 11 years to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends on appeal that the trial court's comments when the jury initially reported being deadlock were unduly coercive and violated his rights to due process and a fair trial under the Fourteenth Amendment of the federal Constitution. Further, reversal is required on the ground that the trial court erred by removing a juror during deliberations. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. THE PEOPLE'S CASE-IN-CHIEF
Dennise Garcia lived on Bay Avenue in Moreno Valley across the street from Dennie Ray Creer. At approximately 7:30 a.m. on August 14, 2016, she had called the police on an unrelated incident. She heard her dogs barking and looked outside to see if the police had arrived. She observed defendant crossing the street. She went outside and saw defendant go to the side of Creer's house instead of the front door. Dennise went inside and got her husband, Robert Garcia.
Initial references to the witnesses are by first and last names; for brevity and clarity as they share a last name, subsequent references are solely by first names.
Dennise and Robert ran down to the corner where they could see Creer's house. Dennise could see into Creer's backyard and could see defendant "messing" with the window of the house. The screen for the window was on the ground. Dennise and Robert crossed the street. Defendant realized they were there and jumped over the fence into Creer's front yard. He came close to Dennise and Robert. Dennise asked defendant if he knew Creer. He did not respond. Robert asked him if he knew Creer and defendant ran away. Dennise called the police and reported the direction in which defendant ran.
Dennise knocked on Creer's door. Creer had returned from work at 5:30 a.m. and was asleep. His girlfriend and his girlfriend's cousin were also asleep in the house. His house had a six-foot-tall fence surrounding the backyard. Dennise woke him up and told him that someone had tried to break into his house.
When Creer went to bed, the window in the back of his house was locked and had the screen intact. When he was awoken at 7:30 a.m., the screen was off the window, the window was open and the blinds were pushed into the house. Robert gave Creer a description of defendant and what he was wearing.
Robert and Creer drove around the neighborhood. Creer found defendant walking down the street about two blocks away from his house. He asked defendant, "Hey man, is that what you do? You break into people's houses around here?"
Riverside County Sheriff's Deputy Michael Galvan was working on patrol on August 14 when he was advised to go to Creer's house on Bay Avenue for a possible burglary in progress. He found defendant at the same time that Creer was approaching him. Defendant was sweating and had a sweatshirt in his hand. The location was within one-half mile of Creer's house. Defendant was detained. He had no tools on his person.
Dennise and Robert identified defendant at a field show-up. Creer did not know defendant.
B. DEFENSE
Deputy Rodger Ocker was the first deputy to arrive at Creer's residence. He spoke with Dennise. He did not recall her telling him that she observed defendant jump over the fence into Creer's backyard. Dennise never told him that she observed defendant pull the screen off Creer's window. Robert told him that he saw defendant, who was wearing a black sweatshirt and beige pants, jump over the fence out of Creer's backyard and run away.
Creer told Deputy Ocker that the screen was not off the window and the blinds were not pushed in when he went to bed. He admitted the window may have been partially open. Robert and Dennise were not separated during the field show-up. There were no attempts to take fingerprints from the window or screen.
Defendant testified on his own behalf. Defendant was homeless on August 14, 2016. The prior night, he had slept outside an elementary school, which was a few blocks from Creer's home. In the morning, he was walking on Bay Avenue when he observed Creer's house; it appeared to be abandoned because there were no cars parked in front. He wanted to get some water and relax in the backyard so he jumped the fence. Once in the backyard, he felt as though someone was watching him. He jumped back over the fence and was confronted by people; a woman asked if he knew Creer. Defendant got scared and ran away. He did not recall a screen being on the ground in the backyard. He never intended to enter the home and did not pull the screen off the window.
Defendant admitted he had prior convictions of receiving stolen property, grand theft and felony evading of a police officer. Defendant had lied to his parole officer about being homeless. He would have violated his parole for trespassing.
DISCUSSION
A. COERCING VERDICT
Defendant claims the judgment must be reversed based on the trial court's coercive comments after the jury reported being hung after only 30 minutes of deliberations.
1. ADDITIONAL FACTUAL BACKGROUND
On November 3, 2016, the jury began deliberations at 2:13 p.m. They chose a foreperson at 2:30 p.m. At 2:58 p.m., the jury sent a note to the trial court stating they were hung. The trial court called all of the jurors into the courtroom. The trial court first advised the jurors that it was a "bottom-line guy." The trial court then advised the jurors, "So I've been told that you claim you're hung. Folks, jury service is important. You were back there for 30 minutes. Unless you memorized each and every word of every jury instruction that I read to you, you absolutely did not review the jury instructions. You did not have time to deliberate. You have not deliberated in good faith in 30 minutes. [¶] What that reflects to me, and I could be wrong, are people who went back immediately and announced how they're planning to vote, 'we're hung,' and that's it. [¶] That's not what jurors do. So I'm not accepting there's a hung jury in this case. Simply not accepting it. This is the first time in all 250 trials I've ever said anything like this, but I read to you jury instructions that are the guidepost for your duties. You need to read those. You need to use them. You need to incorporate your facts and then fold them into those jury instructions, and you can't do that in 30 minutes. [¶] So I'm ordering you to go back and deliberate, please. That's what you raised your hands to do. You swore to do that. This is very serious work that we do. This isn't TV. [¶] So I'm sorry to be so direct, but that's me, folks. I could sugarcoat this and pat everybody on the head and say I really appreciate the hard work, but there is no hard work. A very cursory examination of what happened, no review of the jury instructions. So I'm going to ask you to please go back and do what you swore to do. Please do that."
After the jury went back into the jury room, the trial court inquired of the parties if there was any objection to what it had said to the jury. Neither party objected but defendant's counsel offered that if they were hung again, further instructions may be warranted.
2. ANALYSIS
Initially, the People contend defendant waived this claim by failing to object to the trial court's comments at the time they were made in the lower court. After the jury returned to the jury room, the trial court asked defendant's counsel if there was any objection to its comments. Defendant's counsel had no objection. Defendant's counsel waived this claim by affirmatively agreeing with the court's actions. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [claim of error that the trial court failed to advise jurors what would occur if they were deadlocked waived "[i]nasmuch as defendant both suggested and consented to the responses given by the court" to jury's inquiries].)
Defendant, anticipating that the People would make such an argument, claims that the statement by the trial court amounted to improper instruction to the jury. As such, this court should exercise its independent review of the correctness of the instruction and no objection was necessary because it affected defendant's substantial rights. In addition, he contends that if this court concludes that the claim has been waived, he received ineffective assistance of counsel. As such, we will address the merits of the claim.
Section 1140 allows a trial court to discharge a jury and declare a mistrial if the court determines that the proper period of time for deliberation has expired and " 'there is no reasonable probability' " that the jurors can agree on a verdict.
The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion. (People v. Bell (2007) 40 Cal.4th 582, 616, disapproved of on other grounds in People v. Sanchez (2016) 63 Cal.4th 665.)
"Coercion occurs where 'the trial court, by insisting on further deliberations, expresse[s] an opinion that a verdict should be reached.' [Citation.] ' "Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived ' "as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered." ' " ' " (People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples).)
Although the trial court may not express an opinion on a defendant's guilt or innocence at any stage of the trial, "it is not prohibited from appropriate comment simply because the jury has indicated an initial deadlock in its deliberations." (People v. Proctor (1992) 4 Cal.4th 499, 542, italics omitted.) The court has "broad latitude in fair commentary, so long as it does not effectively control the verdict [and] the court need not confine itself to neutral, bland, and colorless summaries." (People v. Rodriguez (1986) 42 Cal.3d 730, 768.)
When reviewing a coercion claim, we examine "whether or not the court's remarks in sending the jury back for further deliberations indicate[] an opinion on his part as to the guilt or innocence of the defendant, and whether the court creates the impression that in his mind the jury ought to convict." (People v. Diaz (1962) 208 Cal.App.2d 41, 50.)
The trial court said nothing that could be construed as advising the jurors that they had to reach a verdict. The trial court did not threaten the jury that they had to reach a verdict. The trial court simply advised the jury that it did not believe it could conceivably have had time to review all of the instructions and apply the facts to the law in the case. The trial court directed the jury to deliberate in good faith after reviewing the instructions, not to reach a verdict. The trial court acted within its discretion advising the jurors to continue their deliberations after only being in the jury room for 30 minutes. (People v. Bell, supra, 40 Cal.4th at p. 616.)
None of defendant's claims on appeal—that the trial was only four hours, that the trial court made no inquiry whether additional deliberations would assist the jury, and did not remind the jury that they should keep their own individual opinions—are persuasive to show that the trial court abused its discretion. In 30 minutes, it is unlikely that the jury had time to review the instructions completely and discuss the evidence. Even with such a short trial, the instructions were long and the jury, based on its questions after returning to deliberate, struggled with the definition of burglary. They also required testimony be read back. Clearly the jury had not discussed these issues prior to advising the trial court they were hung. Moreover, the trial court believed that the jury had engaged in no deliberations. As such, it did not have to inquire whether further deliberations would assist them. There was no requirement that the trial court instruct the jury to keep their own opinions.
The jury selected a foreperson at 2:30 and announced they were deadlocked 28 minutes later.
We also reject that the statements by defendant that the trial court violated defendant's federal Constitutional rights. The California Supreme Court recently held, " 'In most instances, insofar as defendant raised the issue at all in the trial court, he failed explicitly to make some or all of the constitutional arguments he now advances. In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant's substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant's new constitutional arguments are not forfeited on appeal . [Citations.] [¶] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional "gloss" as well. No separate constitutional discussion is required in such cases, and we therefore provide none.' " (Peoples, supra, 62 Cal.4th at pp. 741-742.) We need not further discuss whether the statements by the trial court violated the federal Constitution.
The trial court did not abuse its discretion and did not violate defendant's federal Constitutional rights by advising the jurors to continue deliberations after reporting that they were hung.
B. REMOVAL OF JUROR NO. 4
Defendant contends the trial court abused its discretion and violated his federal Constitutional rights by removing Juror No. 4 during deliberations.
1. ADDITIONAL FACTUAL BACKGROUND
At 3:45 p.m., during deliberations, the jury asked for a read back of defendant's testimony. At the end of the day, they asked for clarification if removing the screen from the window met the definition of burglary. The next day, November 4, 2016, the trial court referred them to the instructions. At 9:13 a.m., the jurors asked for a read back of additional testimony. At 9:40 a.m., the jury advised the trial court that Juror No. 4 refused to deliberate.
The trial court advised the parties that the jury was reporting Juror No. 4 was refusing to deliberate. The trial court intended to speak with the foreperson and ask the question, " 'During the time that you've been in the deliberation room, had (Juror Number 4) expressed his opinions to you?' " The trial court did not intend to ask what was being said in the room. The trial court felt that if Juror No. 4 was expressing his opinions about the case, then he was deliberating.
Juror No. 10 was the foreperson. The trial court advised Juror No. 10 that it did not want to know what was being said in the jury room. Juror No. 10 was asked if Juror No. 4 was participating in the deliberative process. He responded, "No." Juror No. 10 was then asked if Juror No. 4 had expressed anything about his feelings or beliefs in the case, and he responded, "Yes." He also responded in the affirmative when asked if there was an express refusal to deliberate.
The trial court then advised the parties that it would call in every juror and ask the same question. At this point, the prosecutor advised the trial court that she and defendant's attorney were willing to stipulate that Juror No. 4 could be removed. They did not want the trial court to further inquire of the jurors. The trial court asked if counsel for defendant had discussed the issue with defendant. The trial court asked defendant if he understood his counsel's stipulation to remove Juror No. 4 and be replaced with an alternate. He advised the trial court he understood the stipulation and had no questions. However, defendant's counsel informed the trial court that defendant had asked that each juror be questioned before agreeing with the stipulation.
Defendant's counsel affirmed that she was willing to stipulate that Juror No. 4 be excused.
All of the jurors were individually called into the courtroom. Juror No. 1 stated Juror No. 4 was refusing to participate in discussions with other jurors and consider other points of view. Juror No. 4 exhibited and expressed an unwillingness to engage in the deliberative process. Juror No. 2 was told that the foreperson had advised the trial court that Juror No. 4 was not deliberating. Juror No. 2 was asked, "Do you share that opinion?" and responded, "I do." Juror No. 2 answered yes to both whether Juror No. 4 was willingly refusing to engage in the deliberative process and if Juror No. 4 was refusing to listen to views or expressions by other jurors. Juror No. 3 agreed that Juror No. 4 was refusing to deliberate. When asked if Juror No. 4 was refusing to listen to other jurors, Juror No. 3 responded, "No. He is—well, no. He's listening. He's listening, but he's debating too."
Juror No. 5 agreed that Juror No. 4 was refusing to deliberate. Juror No. 5 was asked if he was debating his position with other jurors, and Juror No. 5 responded, "Not really, no." The trial court asked the juror to clarify what "not really" meant. Juror No. 5 responded, "No." The trial court asked, "Is he demonstrating a complete unwillingness to engage in the deliberative process?" Juror No. 5 responded, "Yes."
Juror No. 6 was also asked if the foreperson was correct that Juror No. 4 was refusing to deliberate. Juror No. 6 responded, "That is correct." The trial court asked, "Is (Juror Number 4) debating points of view?" Juror No. 6 responded, "No." Juror No. 6 stated "Yes" that Juror No. 4 was expressing an unwillingness to engage in the deliberative process.
Juror No. 7 was asked if he shared the opinion of the foreperson that Juror No. 4 was refusing to deliberate. Juror No. 7 responded, "Yes, I do." Juror No. 7 was asked, "Is (Juror Number 4) exhibiting a complete unwillingness to engage in the deliberative process?" Juror No. 7 stated, "Yes, he is." Juror No. 7 was also asked, "Is (Juror Number 4) debating positions with fellow jurors." Juror No. 7 said, "Yes, he has." Juror No. 8 was asked the same questions and responded that Juror No. 4 was not deliberating and refused to engage in the deliberative process. However, Juror No. 8 stated that Juror No. 4 was debating points of view with other jurors.
After inquiring of Juror No. 8, the trial court expressed to the prosecutor and defendant's counsel that it could inquire of other jurors, but three jurors had already stated that Juror No. 4 was debating his position with other jurors. Accordingly, there was no grounds to dismiss Juror No. 4. The prosecutor wanted the trial court to continue questioning jurors; "debating" by Juror No. 4 could be an expression that he had his opinion and was not going to change it.
More jurors were questioned. Juror No. 9 agreed with the foreperson that Juror No. 4 was not engaging in the deliberative process. Juror No. 9 was asked, "Is (Juror Number 4) expressing points of view?" Juror No. 9 responded, "Yes." Juror No. 9 was then asked, "And is (Juror Number 4), while expressing those points of view, arguing his view of the situation?" Juror No. 9 responded, "Yes." The trial court asked, "Okay. And so instead of an unwillingness to engage in the deliberation, is it simply that there is a difference of opinion amongst jurors?" Juror No. 9 answered, "Yes."
Juror No. 11 was questioned. Juror No. 11 stated that Juror No. 4 was refusing to engage in the deliberative process. Juror No. 11 was then asked, "Is (Juror Number 4) relating in the deliberation room his opinions about the case? Juror No. 11 responded, "Yes." Juror No. 11 indicated it was a matter of jurors disagreeing with each other and other jurors were able to express their points of view.
Juror No. 12 also agreed that Juror No. 4 was not engaging in the deliberative process. Juror No. 12 stated that Juror No. 4 was expressing his opinions to the fellow jurors and the fellow jurors were expressing their opinions to him. The trial court asked, "And we are facing a situation where there's just a disagreement between jurors that's not changing? Juror No. 12 responded, "Yes."
The prosecutor was concerned that all the jurors agreed that Juror No. 4 was not engaging in the deliberative process but also stated he was expressing his opinions. The prosecutor wondered how Juror No. 4 could do both. The trial court responded that the only way to determine what the jurors meant was to invade the province of the jury, which it was not going to do. The trial court noted that six of the 10 jurors questioned stated that defendant was debating and expressing his opinions. The prosecutor asked the trial court to inquire of the foreperson if Juror No. 4's expression of his opinions applied to the facts of the case. The trial court refused to ask specifics about deliberations.
The prosecutor disagreed that this question was asking about what was occurring in the jury room. It was a question of whether Juror No. 4 was following the instructions to apply the facts to the law. The trial court asked defendant's counsel her opinion on the question and she deferred to the court. The trial court responded, "I need you to state your position, what you want to do with Trial Juror Number 4." Defendant's counsel stated that based on the responses by the jurors, it appeared that Juror No. 4 was participating in the deliberative process.
Juror No. 10, the foreperson, was called back for questioning. Juror No. 10 was asked "In the discussions where there is a debate, is it simply a case where facts are being discussed, the law's being discussed, and there's differing opinions? Juror No. 10 responded, "No." The trial court followed up with, "Is there a situation where there is an expression of a fixed conclusion at the beginning of deliberations, and a refusal to consider other points of view?" Juror No. 10 responded, "Yes." The trial court then asked, "And has that been the problem from the outset?" and Juror No. 10 responded, "Yes."
The prosecutor then put on the record, "I think at this time, . . . it's important to put on the record that Juror Number 4 has been observed by both sides as being not happy to be here. I don't recall when that first started, but I've noticed it not only when I'm speaking, but when defense was speaking, when the Court's speaking. He huffs and puffs, closes his eyes and displays a general disdain for this process." Defendant's counsel stated, "I do agree. I have made the same observation."
The trial court then brought back each juror and asked the following question: "Is there a refusal [by Juror No. 4] to consider other points of view, and a fixed position in the beginning?" Jurors 1, 2, 3, 5, 6, 8, 9, 11 and 12 all responded with simply, "Yes." Juror No. 7 responded, "I believe there was, yes."
The trial court asked defendant's counsel if she had any further requests of the trial court. She responded, "I don't. I think it's pretty clear what we need to do next, is excuse (Juror Number 4)." The prosecutor agreed. Juror No. 4 was replaced with the alternate and the jury was instructed to start deliberations anew (CALCRIM No. 3575). They returned to the jury room at 1:33 p.m. and reached a verdict at 2:22 p.m.
The People contend defendant did not waive the substantive argument that the trial court erred by removing Juror No. 4, but argues defendant waived the claim that the trial court failed to make an adequate inquiry of the jurors and that the trial court's follow-up was inappropriate. Again, defendant anticipated that the People would make such argument and contends that if the claims are waived, he received ineffective assistance of counsel. As such, we will review the merits of defendant's claims.
Pursuant to section 1089, the trial court may discharge a juror at any time based on a showing of "good cause" that the juror is "unable to perform his or her duty 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged." (People v. Espinoza (1992) 3 Cal.4th 806, 821, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800.) "The need to protect the sanctity of jury deliberations, . . . does not preclude reasonable inquiry by the court into allegations of misconduct during deliberations." (People v. Cleveland (2001) 25 Cal.4th 466, 476.) A refusal to deliberate constitutes good cause to remove a juror. (People v. Leonard (2007) 40 Cal.4th 1370, 1410 (Leonard).)
" 'A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.' " (Leonard, supra, 40 Cal.4th at pp. 1410-1411, quoting People v. Cleveland, supra, 25 Cal.4th at p. 485.)
"The ultimate decision to retain or to discharge a juror rests within the court's sound discretion. [Citation.] [¶] 'We review a trial court's decision to discharge a juror under an abuse of discretion standard, and will uphold such decision if the record supports the juror's disqualification as a demonstrable reality.' [Citation.] 'The demonstrable reality test entails a more comprehensive and less deferential review' than is typical under the abuse of discretion standard. [Citation.] '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 the juror was unable to perform his or her duties. [Citation.] Although a reviewing court will not reweigh the evidence, we 'must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' [Citation.] In reaching that conclusion, we 'will consider not just the evidence itself, but also the record of reasons the court provides.' " (People v. Debose (2014) 59 Cal.4th 177, 200-201.)
Here, based on the totality of the evidence before the trial court, it was not an abuse of the trial court's discretion to remove Juror No. 4. The jurors were unanimous in their agreement that Juror No. 4 was refusing to engage in the deliberative process. Some of the jurors agreed that Juror No. 4 was willing to express his opinion. However, it became clear to the trial court that Juror No. 4 may have expressed his opinion at the beginning of the deliberations but then refused to consider other points of view. The trial court, well within its discretion, decided that further inquiry was required. All of the jurors agreed that Juror No. 4 expressed his verdict in the case at the beginning of the deliberations and refused to consider other points of view.
The determination by the trial court that Juror No. 4 was refusing to deliberate was supported by the jurors announcing after just 30 minutes that they were hopelessly deadlocked. Further, this explained why the jurors expressed both that Juror No. 4 had advised them of his opinion in the case but also that they reported he refused to deliberate. Although initially it appeared that the jurors thought Juror No. 4 was deliberating, it was clear that when directly questioned by the trial court whether Juror No. 4 made up his mind prior to deliberations, they were clear that he had. Such conduct warranted dismissal of Juror No. 4. (Leonard, supra, 40 Cal.4th at pp. 1410-1411; see also People v. Wilson (2008) 43 Cal.4th 1, 26.)
Defendant insists that Juror No. 4 only reached a decision early in the deliberations, which did not justify his removal. He asserts that the record disclosed that Juror No. 4 listened to other jurors, expressed his opinions and participated. However, the totality of the record shows that Juror No. 4 made up his mind at the beginning of deliberations, as evidenced by the early hung jury. Further, the jurors all reported that he refused to participate in the deliberative process. The prosecutor also advised the court, and defendant's counsel agreed, that Juror No. 4 had exhibited a disdain for the proceedings throughout the trial. This supported that Juror No. 4 had made up his mind prior to deliberations. Finally, all of the jurors agreed that Juror No. 4 had his mind made up at the beginning of deliberations. The refusal of Juror No. 4 to deliberate was shown by a demonstrable reality. The trial court did not abuse its discretion by removing and replacing Juror No. 4.
Defendant contends that this evidence could not be used to support his removal. However, he provides no legal authority to support such assertion.
We further reject that this violated his federal Constitutional rights. (Peoples, supra, 62 Cal.4th at p. 741-742.) --------
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.