Opinion
B326805
02-20-2024
THE PEOPLE, Plaintiff and Respondent, v. RODNEY LOUIS GAINES, Defendant and Appellant.
James Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance Winters, Chief Assistant Attorney General, Susan Pithey, Senior Assistant Attorney General, Steven Matthews and Ryan Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. MA082715 Manuel Almada, Judge. Reversed.
James Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance Winters, Chief Assistant Attorney General, Susan Pithey, Senior Assistant Attorney General, Steven Matthews and Ryan Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ADAMS, J.
A jury convicted defendant and appellant Rodney Gaines of elder abuse. On appeal, Gaines contends the trial court erred in admitting statements he made during a custodial interrogation in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also argues the trial court erred in excusing a juror under Penal Code section 1089 for refusing to deliberate. We find the second argument has merit and therefore reverse the judgment.
All further statutory references are to the Penal Code.
Because we reverse the judgment, we need not address Gaines's Miranda argument.
FACTUAL AND PROCEDURAL BACKGROUND
Our analysis on appeal focuses on the discharge of a juror, thus we provide only a brief summary of the underlying factual background.
The evidence at trial established that in February 2022, Rodney Gaines and his 70-year-old uncle, David Gaines, drove to a convenience store. In the parking lot, David suffered an injury to the back of his head and was knocked unconscious. Recorded video footage showed Gaines punching David and forcing him out of the car. In an interview with a law enforcement officer, Gaines admitted hitting David, but he claimed David had also hit and kicked him.
For the sake of clarity, we refer to David Gaines by his first name only. No disrespect is intended.
The People charged Gaines with one count of elder abuse in violation of section 368, subdivision (b)(1). The court granted Gaines's motion to represent himself throughout the proceedings. Gaines pled not guilty. He moved to suppress his pretrial statements to law enforcement, arguing he had not knowingly and intelligently waived his Miranda rights. The trial court denied the motion. At trial, Gaines argued he acted in selfdefense and contended some of David's injuries were accidental.
The jury convicted Gaines of elder abuse under section 368, subdivision (b)(1). The jury found true allegations that the victim was particularly vulnerable, and that Gaines took advantage of a position of trust and confidence in committing the offense. It did not find true that Gaines had engaged in violent conduct indicating he was a serious danger to society. In October 2022, the trial court granted Gaines's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, struck his three prior strikes, and imposed a four-year sentence. Gaines timely appealed.
DISCUSSION
I. The Trial Court Abused Its Discretion in Discharging
Juror No. 2
Gaines argues the trial court violated his constitutional rights by excusing Juror No. 2 for failing to deliberate. Gaines contends the record showed Juror No. 2 was a hold-out juror who "deliberated until reaching her unpopular decision," and that her staunch disagreement with the majority view was improperly construed as refusing to deliberate.
A. Background
Deliberations began on Friday, July 8, 2022. The jury communicated its concerns about Juror No. 2 several times to the court during deliberations between Friday, July 8 and Tuesday, July 12. On Monday afternoon, the jury sent a note to the court stating: "One jury [sic] is not willing to listen to any evidence and being argumentive [sic] with the rest of the jurors. We are unable to move forward." The following morning, the trial court questioned the foreperson about the note. The foreperson stated the juror was "involved" but "argumentative." She was considering the evidence "in some aspect," but was also "using personal things outside of the evidence to argue [her] position." According to the foreperson, the juror had engaged in discussions and participated in jury votes, but was "questioning the terms and the meanings and the definitions" of specifically defined words in the jury instructions. The foreperson explained: "And we're reading [the instructions] to her, but she's questioning what they mean, when they're-all the other jurors understand your instructions."
The discussion continued:
"[Court]: And you indicated that that particular juror is bringing or considering personal items. Is that what you - personal
"[Foreperson]: Personal scenarios.
"[Court]: Is that juror also considering the evidence that was presented here?
"[Foreperson]: Yes.
"[Court]: And when you say that that juror is questioning the definition of words . . . does that juror appear to be disagreeing with the definitions that the jury has been instructed on or presenting alternate explanations for certain words?
"[Foreperson]: Something else. She's not understanding the terms and the meaning of those words in those instructions that you gave to us."
Based on the foreperson's answers, the court concluded there was "a disagreement in regards to the form of deliberations, the interpretation that one or more jurors may have for certain evidence," but not "sufficient evidence for the court to move on and inquire of each individual juror in regards to whether they agree or disagree with the jury foreperson."
During the foreperson's discussion with the court, she indicated the jury had another note for the court, which read: "We would like to have the term 'likely to produce['] and [']great bodily harm['] defined for Juror #2. We would like to request if we could possibly have Juror[s] 2 and 10 remove[d]. 2 is still argumentative and 10 feel [sic] asleep during the reading of the victim['s] and [d]efendant['s] transcript[s] by the court reporter." The court then questioned and ultimately excused Juror No. 10 for falling asleep during the readback of testimony.
After seating an alternate as Juror No. 10, the court instructed the jury to "disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place." Juror No. 11 began to raise concerns in open court about Juror No. 2's behavior, but the court interrupted to remind the jury that concerns and questions had to be communicated in writing. The court recessed for lunch.
When deliberations resumed at 1:30 p.m., the jury sent another note to the court, stating: "Juror # 2 is not deliberating, she's belittling me (Juror #11) &others here, I didn't sign up to be verbally abused and she's not doing her job as a juror. If you want her to stay, I need you to tell me the procedure by which I can legally withdraw . . . immediately. Juror #8 is also asking to be excused if Juror #2 stays." The court decided to conduct an individual inquiry of each juror to address the assertion that Juror No. 2 was failing to deliberate.
The court again questioned the foreperson. The foreperson stated Juror No. 2 was yelling and talking over other jurors when discussing the evidence. Juror No. 2 would interrupt other jurors while they were speaking to say," 'I'm not gonna do that,'" and," 'You guys are not going to persuade me.'" Juror No. 2 was also "bringing [in] personal stuff, she's yelling, she is not listening ...." The foreperson further described Juror No. 2 as "applying the law in some aspects of the evidence and the instructions that you gave to us, but in some incidents [sic] she's not. She's using personal [sic] towards what evidence is being given and what we're discussing, she's using personal scenarios instead of using the evidence that was presented to her in court."
The court asked: "If I understand you correctly, she's bringing in extrinsic, that means things that have no bearing on this case, no[t] evidence based, she's bringing her personal experiences and applying those facts to her opinions, ultimately. Is that more or less what she's doing?" The foreperson answered, "Yes."
Juror No. 11 stated Juror No. 2 had made up her mind about the outcome of the case within the first five minutes of deliberations and told the rest of the jury," '[T]here is nothing that you can do or say that can change my mind.'" When the jurors discussed the evidence and did not agree with Juror No. 2, she would "get[ ] emotional," yell, "put people down," say the other jurors were not listening to her, and accuse them of attacking her. According to Juror No. 11, Juror No. 2 refused to review the evidence again and was not deliberating with "an open mind." After Juror No. 11 reprimanded Juror No. 2, "she engaged in some discussion for about 20 minutes" before starting to yell and "belittling" other jurors. Juror No. 2 was now "doodling in her notebook" and no longer paying attention.
Juror No. 11 added that Juror No. 2 "brings in other examples that don't even pertain to this case," "like her interpretation of - of medical records or something like that." Juror No. 11 did not "even know what [Juror No. 2] was saying because it didn't even make any sense when she was talking." Juror No. 11 also felt that Juror No. 2 was not listening to the discussion.
Juror No. 10, who had been seated just before lunch, had "only heard maybe one or two [jurors] speak" and could not opine on whether there were issues with jury deliberation.
Juror No. 9 reported that Juror No. 2 "feels attacked" and "doesn't seem to understand" that the remaining jurors were "wanting to come to an agreement." Juror No. 2 was refusing to consider other viewpoints and "making examples that has [sic] nothing to do with the case." The court asked, "And the evidence here?" Juror No. 9 responded: "And the evidence, yes, your Honor. And also it's more of she's not - she's not understanding, again, and she's more thinking of all of us are attacking her, and which we're not."
Juror No. 8 informed the court that Juror No. 2 "seems to have made up their mind immediately after we got into the deliberation," and quoted Juror No. 2 as saying," 'I've basically made up my mind. Don't show me anything. I don't want to see any more evidence.'" Juror No. 2's attitude had remained the same throughout the deliberations.
According to Juror No. 7, Juror No. 2 made up her mind by "the end of the very first day," after the jury had deliberated for around an hour and a half. Juror No. 7 also explained that on the first day, Juror No. 2 got "kind of loud" and "[s]he wasn't really listening when the foreman was talking, and it just . . . seems like she had made up her mind when some of the other jurors were like changing their mind and everything, and it didn't seem like she wanted to move forward at all." However, Juror No. 7 said Juror No. 2 had later reviewed more evidence, including earlier that day. Juror No. 7 believed that Juror No. 2's continued review of the evidence "changed her opinion further away from what she already had decided." Juror No. 2 was also "bringing in outside experience that wasn't really applicable to the case, and it was swaying her opinion in one way." The court asked, "Not based on the evidence?" to which Juror No. 7 responded, "Correct."
Juror No. 6 attested that Juror No. 2 "pretty much" told the jurors on the first and second day of deliberations "that she's not going to talk about it anymore, she's done all she is going to do and, 'I don't want to hear anything.'" When asked if Juror No. 2 had applied the evidence to the law as instructed, Juror No. 6 said, "No, that's what it is. We are applying the evidence and .... [¶] . . . [¶] . . . she's coming up with other things in her mind that could have happened, I guess." The court asked: "Unrelated to the evidence in this case?" Juror No. 6 answered: "Correct."
Juror No. 5 stated Juror No. 2 said on the first day of deliberations that she was not going to change her mind, had been "combative" with the other jurors, and she refused to consider their views. Juror No. 2 had taken this position at the start of deliberations. Juror No. 5 opined that Juror No. 2 was "not really" applying the facts or the evidence presented during trial to the law as instructed, because she kept asking for definitions of the law but "other than that like she's not really trying to, you know, work together on deciding." When the court asked if Juror No. 2 was "bringing anything fact-wise that was not presented at this trial," Juror No. 5 said no. Juror No. 5 also indicated Juror No. 2 was "really rude," constantly interrupted other jurors if they disagreed with her, and raised her voice and yelled.
Juror No. 4 believed Juror No. 2 did "not want to participate." Juror No. 4 explained: "We bring . . . all the points to the table and we'll seem like we're getting somewhere. Everything turns back to the same, you know, not being able to reach anything at all. It's like it never happened." Juror No. 4 said the jury discussed "certain points" and Juror No. 2 engaged in those discussions. However, Juror No. 4 still felt Juror No. 2 was not deliberating because she said she "doesn't want to hear anymore, she doesn't want to deliberate anymore, doesn't want to hear everybody else's opinion." This started "the first or second day of deliberating." Juror No. 4 also did not think Juror No. 2 was applying the facts and evidence to the law as instructed "[a]t all." The court asked:
"[Court]: Why do you say that?
"Juror No. 4: Because, like I said, we looked at the evidence, we
"[Court]: Is she bringing in facts outside of what was presented here?
"Juror No. 4: Yes, sir."
Juror No. 3 said Juror No. 2 was refusing to deliberate because "after two days of communicating with everyone I feel like she still has her mind stuck on her one decision, and after hours of talking, honestly, I don't see any sign of her changing her mind.... [¶] . . . [¶] . . . or communicating further with the rest of the jurors." Juror No. 3 said Juror No. 2 had engaged in discussions "in regards to other viewpoints," but "from the beginning . . . hunkered down on [her] viewpoint" and was bringing in facts not presented at trial.
The court asked Juror No. 2 if she thought any jurors "have failed or are refusing to deliberate in this matter." Juror No. 2 said no. The court did not inquire further.
Juror No. 1 said Juror No. 2 was refusing to deliberate because she was "extremely unwilling to cooperate with the rest of the jurors." The court and Juror No. 1 then had the following exchange:
"[Court]: [W]hat I am interested in in this case, clearly individuals can have varying opinions and that is okay.
"Juror No. 1: Yeah.
"[Court]: Is this a case in which you believe that the juror has simply refused to deliberate, meaning considering other viewpoints, considering the evidence and applying that evidence to the law as I have instructed you?
"Juror No. 1: That's correct. "[Court]: So it's beyond just a simple disagreement
"Juror No. 1: Yes. Yes.
"[Court]: -Of what the evidence shows?
"Juror No. 1: Yes, sir.
"[Court]: Okay. Is there a way that you can elaborate without going further into your deliberative process?
"Juror No. 1: Not - not really."
Juror No. 1 also stated that Juror No. 2 was "not looking at the evidence at all, essentially" since deliberations began.
Based on the individual inquiries, the court found good cause to discharge Juror No. 2. The court explained: "It appears that the jurors are of the opinion that Juror No. 2 from the outset has refused to deliberate, and it's beyond a mere disagreement on what the evidence shows but is a disregard to examining what the evidence actually showed and applying that to the law as it has been instructed in this case." The court then paused before stating its findings and asked if either side wished to be heard. The prosecutor and Gaines submitted without argument.
On appeal, the People have not asserted Gaines forfeited any argument related to the removal of Juror No. 2 by failing to object in the trial court. Because "the removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant's state and federal constitutional right to a unanimous decision by the jury," (People v. Armstrong (2016) 1 Cal.5th 432, 454 (Armstrong)), we find it appropriate to exercise our discretion to consider Gaines's claim on its merits. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate court has authority to reach a question not preserved for review by a party].)
The court continued: "At this time the court does find that there is a demonstrable reality that Juror No. 2 is unable or unwilling to deliberate, and that is based on not only the various discussions that the court has had with the jury foreperson before here in open court, but also after having substituted a juror and receiving another note to the same effect, adding additional jurors attesting to what they consider to be the abusive conduct of Juror No. 2 and Juror No. 2's failure - unwillingness to deliberate and consider anything, her emphatic statement at the outset . . . of the deliberations what her opinion was, and being unwilling to consider other viewpoints.... [T]he court . . . does find that this juror can no longer serve as there is a demonstrable reality that she is not deliberating and has not deliberated essentially from the outset in this matter ...."
The trial court excused Juror No. 2 and designated an alternate to replace her. The court instructed the newly constituted jury that it was required to set aside past deliberations and begin deliberations anew. The jury returned a guilty verdict around 20 minutes later.
B. Applicable Legal Principles
A court may discharge a juror "[i]f at any time, whether before or after the final submission of the case to the jury, a juror . . . upon other good cause shown to the court is found to be unable to perform his or her duty ...." (§ 1089.) "Good cause exists to discharge a juror when the juror loses his or her ability to render a fair and impartial verdict based on the evidence presented at trial." (People v. Barton (2020) 56 Cal.App.5th 496, 508 (Barton).)
Section 1089 authorizes a trial court to remove a juror "who refuses to deliberate, on the theory that such a juror is 'unable to perform his duty ....'" (People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).) "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." (Id. at p. 485.) "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." (Ibid.)
The court's inquiry must "focus on its own consideration of a juror's conduct," and it "cannot substitute the opinions of jurors for its own findings of fact." (People v. Allen and Johnson (2011) 53 Cal.4th 60, 75 (Allen); Cleveland, supra, 25 Cal.4th at p. 476.) "[A] reviewing court defers to the factual determinations the trial court makes when assessing the credibility of the jurors, who may offer conflicting accounts." (Allen, at p. 75.)
"Although a trial judge has discretion to remove a juror for a failure to deliberate, the exercise of that discretion should be undertaken with great care." (Armstrong, supra, 1 Cal.5th at p. 454.) For this reason, appellate "review of the decision to remove a seated juror is not conducted under the typical abuse of discretion standard, but rather under the 'demonstrable reality' test." (People v. Fuiava (2012) 53 Cal.4th 622, 711.)
"The demonstrable reality test entails a more comprehensive and less deferential review [than a substantial evidence inquiry]. 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 basis for removal] was established.... [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. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053 (Barnwell); Barton, supra, 56 Cal.App.5th at p. 509.)
C. Discussion
The trial court relied on "the various discussions that the court . . . had with the jury foreperson," and the remaining jurors' statements about Juror No. 2's conduct, when concluding there was a demonstrable reality that Juror No. 2 failed to deliberate. In making its ruling, the trial court cited the jurors' descriptions of Juror No. 2's "abusive conduct," Juror No. 2's "emphatic statement at the outset" of deliberations about her opinion, and her unwillingness to consider other viewpoints.
1. Fixed conclusion at the start of deliberations
As noted above, we must review the trial court's ruling to determine "whether 'the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' [Citation.]" (People v. Lomax (2010) 49 Cal.4th 530, 590.) We begin with the trial court's finding that Juror No. 2's "emphatic statement" at the outset of deliberations and unwillingness to consider other viewpoints evinced a failure to deliberate. We note the jurors' statements were inconsistent regarding when Juror No. 2 fixed her conclusion about the case. However, the trial court impliedly found credible the statements that Juror No. 2 made a decision about the case before she entered deliberations or very shortly after deliberations began. We defer to this factual finding. (Allen, supra, 53 Cal.4th at p. 75 .)
Yet, that a juror makes up his or her mind about a case before deliberations begin, or very early in the deliberations process, does not alone amount to a failure to deliberate. (People v. Bowers (2001) 87 Cal.App.4th 722, 733 (Bowers).) Further, a juror in this position does not necessarily have to engage in "formal discussions" of issues the juror has already considered and decided. (Ibid.) Once a juror has engaged in some deliberations, an unwillingness "to engage in further discussion, by itself, does not show as a demonstrable reality that she was failing to deliberate. It is not uncommon, or grounds for discharge, 'for a juror (or jurors) in a trial to come to a conclusion about the strength of a prosecution's case early in the deliberative process and to refuse to change his or her mind despite the persuasive powers of the remaining jurors.' [Citation.]" (Armstrong, supra, 1 Cal.5th at p. 453.) However, as the Bowers court explained, some degree of deliberation is still required.
In Bowers, the juror accused of failing to deliberate had come to a "preliminary decision" after closing arguments that he did not believe the prosecution's witnesses. (Bowers, supra, 87 Cal.App.4th at p. 726.) When interviewed by the court, the jurors disagreed about the extent to which the juror participated in deliberations. Some stated the juror had "advised the other jurors of his decision and the basis of that decision ...." (Ibid.) Others indicated he had already reached a decision at the beginning of deliberations and had failed to participate "at certain times," including by falling asleep, or by not fully engaging in discussions or responding to questions. (Ibid.) During the trial court's questioning, the juror in question stated he had come to a "preliminary decision" after closing arguments, participated in a jury vote, listened to other jurors, gave his opinion, and stated he was sticking with it. (Id. at p. 727.) The trial court discharged the juror for failing to deliberate.
The appellate court reversed after concluding the evidence showed the juror "deliberated and participated to some degree in group discussions." (Bowers, supra, 87 Cal.App.4th at p. 732.) Rather than demonstrating an inability to perform as a juror, the juror's "behavior was a communicated manifestation of his perceptions and opinions concerning the evidence." (Id. at p. 731.) The court concluded the juror's "manner of deliberating was more understated," but it was not a refusal to deliberate or to perform the functions of a juror. (Id. at p. 735.) In this context, the Bowers court found the juror's early determination of the case alone did not constitute a failure to deliberate, and "a party's right to have his case decided by a jury does not necessarily include the right to compel jurors to discuss issues that they have chosen to decide without discussion." (Id. at p. 734.)
The question here, then, is whether the objective evidence reflects Juror No. 2 not only came to a fixed conclusion about the case early in the proceedings, but also that she failed entirely to participate in the deliberative process. We focus our inquiry on the evidence of Juror No. 2's conduct, not her reported statements. (Allen, supra, 53 Cal.4th at p. 75; Cleveland, supra, 25 Cal.4th at p. 476.)
While the other jurors reported that Juror No. 2 repeatedly stated she would not change her mind, review the evidence, or meaningfully discuss the issues, the jurors' descriptions of Juror No. 2's conduct reflects that Juror No. 2 engaged in some deliberations, albeit unskillfully. The foreperson initially told the court Juror No. 2 was "involved," she considered the evidence "in some aspect," she engaged in discussions, she participated in jury votes, and she was discussing-and questioning-the meaning of legal terms. Other jurors subsequently reported that Juror No. 2 asked for definitions of terms, reviewed some evidence, referred to examples and experiences during discussions, and responded, however antagonistically, to others' opinions. Nothing in the record suggests Juror No. 2 refused to sit with other jurors during deliberations or otherwise physically withdrew from the discussion. (Cf. People v. Thomas (1994) 26 Cal.App.4th 1328, 1333 [finding juror failed to deliberate partly because he "did not sit at the table with the other jurors during deliberations"].) This demonstrated some level of participation, even if it lacked the quality or substance other jurors felt was necessary.
We are mindful of our high court's observation in People v. Engelman (2002) 28 Cal.4th 436, 446 (Engelman), that "[i]t is difficult enough for a trial court to determine whether a juror actually is refusing to deliberate or instead simply disagrees with the majority view. [Citations.] Drawing this distinction may be even more difficult for jurors who, confident of their own good faith and understanding of the evidence and the court's instructions on the law, mistakenly may believe that those individuals who steadfastly disagree with them are refusing to deliberate or are intentionally disregarding the law. Jurors, of course, do not always know what constitutes misconduct." The difficulty of this endeavor is apparent here in some of the jurors' answers to the court's questions, in which they explained they believed Juror No. 2 was not deliberating because she failed to understand that the other jurors wanted to come to an agreement, or because she showed no signs of changing her mind.
2. Abusive conduct
Further, although the record shows Juror No. 2 was "argumentative," "uncooperative," "condescending," "combative," "rude," "disrespectful," defensive, and emotional, this was not good cause for removal. "The circumstance that a juror does not deliberate well . . . does not constitute a refusal to deliberate and is not a ground for discharge." (Cleveland, supra, 35 Cal.4th at p. 485.)
"[J]urors, without committing misconduct, may disagree during deliberations and may express themselves vigorously and even harshly: '[J]urors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means.' [Citation] During deliberations, expressions of 'frustration, temper, and strong conviction' may be anticipated ...." (Engelman, supra, 28 Cal.4th at p. 446; see, e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1350, 1352 [court did not abuse its discretion in finding no misconduct where several jurors were described as "hostile" and "strongly opinionated," and stated their opinions in an early vote "in an emphatic manner that offended or upset certain other jurors"]; People v. Keenan (1988) 46 Cal.3d 478, 541 [harsh, inappropriate outbursts, including a death threat, was "an expression of frustration, temper, and strong conviction against the contrary views" and not juror misconduct].)
Juror No. 2's "abusive conduct" appeared to be in connection with discussions of the case. It occurred specifically when she was disagreeing with other jurors about the outcome. Her behavior was troubling and may have warranted an admonition or further instruction from the court. (See, e.g., CALCRIM No. 3550 ["Keep an open mind and openly exchange your thoughts and ideas about this case.... Please treat one another courteously"].) But the record does not manifestly support the trial court's conclusion that Juror No. 2 was refusing to deliberate, rather than maintaining a steadfast disagreement with the majority. (Barnwell, supra, 41 Cal.4th at pp. 10521053.)
3. Reliance on personal experience or extrinsic matters
Although the trial court expressly found a demonstrable reality that Juror No. 2 failed to deliberate, the court prefaced its ruling by noting what the jurors opined was Juror No. 2's "disregard to examining what the evidence actually showed and applying that to the law as it [had] been instructed" in the case. "A juror who 'refuses to follow the court's instructions is "unable to perform his duty" within the meaning of Penal Code section 1089.' [Citation.]" (People v. Salinas-Jacobo (2019) 33 Cal.App.5th 760, 775.) Further, "[a] jury's verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters." (People v. Leonard (2007) 40 Cal.4th 1370, 1414.) However, even assuming the improper use of extrinsic matters was an additional basis for the trial court's ruling, we cannot be confident that conclusion was manifestly supported by evidence on which the court actually relied. (Barnwell, supra, 41 Cal.4th at p. 1053.)
"A juror commits misconduct if the juror conducts an independent investigation of the facts [citation], brings outside evidence into the jury room [citation], injects the juror's own expertise into the deliberations [citation], or engages in an experiment that produces new evidence [citation]." (People v. Wilson (2008) 44 Cal.4th 758, 829.) "However, a distinction must be drawn between the introduction of new facts and a juror's reliance on his or her life experience when evaluating evidence." (Allen, supra, 53 Cal.4th at p. 76.) "Jurors' views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work." (In re Malone (1996) 12 Cal.4th 935, 963; Allen, at p. 77.) Therefore, jurors may" 'use their experience in evaluating and interpreting that evidence.'" (Allen, at p. 77, quoting People v. Steele (2002) 27 Cal.4th 1230, 1266 (Steele).) Still, "[a] juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence ...." (Steele, at p. 1266.)
For example, in Allen, an eyewitness claimed he was near the scene of the crime at the time of incident, and he identified the defendant as the shooter. Although his timecard showed he was at work on the day of the crime, he testified that his friend, "Jose," sometimes punched in for him at work. (Allen, supra, 53 Cal.4th at p. 64.) During deliberations, one juror said the eyewitness had lied, explaining:" 'I know Hispanics, they never cheat on timecards, so this witness . . . was at work, end of discussion.'" (Id. at p. 66.) The trial court discharged the juror for misconduct, finding, in part, that the juror used facts not in the record to decide the case. (Id. at p. 68.)
The Supreme Court reversed, concluding the juror's remark did not constitute misconduct. The court rejected the assertion that the juror "ignored or substituted his own beliefs for the court's legal instructions." (Allen, supra, 53 Cal.4th at p. 77.) Instead, the juror's comments were a permissible assessment of the witness's credibility. The court further explained the juror's "positive opinion about the reliability of Hispanics in the workplace did not involve specialized information from an outside source." (Id. p. 78.) Rather, it reflected "an application of [the juror's] life experience, in the specific context of timecards and the workplace, that led him to conclude" the witness was not telling the truth about the crime. (Ibid.)
In contrast, courts have found misconduct occurred when, for example, a juror repeatedly stated during deliberations that he was a former police officer and therefore knew the law (In re Stankewitz (1985) 40 Cal.3d 391, 399-400), and when a juror consulted a dictionary to define the term "preponderance." (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 326327.)
Here, some jurors stated or confirmed in response to the court's questions that Juror No. 2 was "bringing in" facts not presented at trial, or that she was relying on "outside experience," "personal experiences," and "personal scenarios." Other jurors said Juror No. 2 was "making" or "bringing in" other "examples" unrelated to the case.
These responses were conclusory and general. They did not suggest Juror No. 2 conducted independent research, consulted outside sources of information beyond her own personal experience, or relied on any particular expertise. Instead of revealing that Juror No. 2 introduced outside evidence or facts about the case into the deliberations, several jurors' statements appeared to indicate Juror No. 2 was discussing matters or personal experiences that had nothing to do with the case at all and were therefore unhelpful and irrelevant. It is unclear on this record whether Juror No. 2 was referring to or relying on "personal" and "outside" experiences to evaluate and interpret the evidence presented at trial, or substituting outside experiences for the facts in the case to determine the outcome, contrary to the court's instructions. Neither the trial court in its questions nor the jurors in their responses distinguished between the permissible and impermissible uses of outside experiences or "personal scenarios." The trial court could not base its ruling on the opinions of jurors in the absence of objective evidence about Juror No. 2's conduct. (Allen, supra, 53 Cal.4th at p. 75.)
Further, the court conducted a very cursory inquiry of Juror No. 2. She was not afforded an opportunity to explain her view of the deliberations. The ambiguity in other jurors' descriptions of her conduct" 'was never resolved by proof, and the court was not entitled to do so by presuming the worst'" of a juror. (People v. Henderson (2022) 78 Cal.App.5th 530, 563, quoting People v. Compton (1971) 6 Cal.3d 55, 60; Bowers, supra, 87 Cal.App.4th at p. 729.) We cannot conclude that Juror No. 2's disqualification because of a purported reliance on extrinsic facts appeared on the record as a demonstrable reality.
4. Prejudice
"A trial court's error requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error." (Bowers, supra, 87 Cal.App.4th at p. 735.) Here, the record strongly suggests Juror No. 2 was the lone hold-out juror against a guilty verdict. The jury had not reached a verdict during the two days Juror No. 2 served. However, after the court dismissed Juror No. 2 and seated an alternate, the newly constituted jury reached a guilty verdict in under 30 minutes. (Cleveland, supra, 25 Cal.4th at pp. 473, 486 [trial court committed prejudicial error where, after it improperly discharged a juror for failing to deliberate, jury with seated alternate reached a guilty verdict less than two hours later]; Barton, supra, 56 Cal.App.5th at p. 516 [prejudicial error existed where the defendant was convicted within hours after the lone hold-out juror was discharged and an alternate juror seated].) Had Juror No. 2 "been allowed to remain on the jury panel, it is reasonably probable the case would have ended in a mistrial; a more favorable result for defendant than conviction." (Bowers, supra, 87 Cal.App.4th at p. 736.) The trial court's erroneous removal of Juror No. 2 was therefore prejudicial.
DISPOSITION
The judgment is reversed.
We concur: LAVIN, Acting P. J. EGERTON, J.