Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH46505
Dondero, J.
Defendant was convicted following a jury trial of aggravated sexual assault upon a child under 14 years of age (Pen. Code, § 269, subd. (a)(1)), as charged in count 1, and sentenced to state prison for an indeterminate term of 15 years to life. His sole argument in this appeal is that the trial court erred by discharging a juror during deliberations. We conclude that the court did not abuse its discretion by discharging the juror for failing to follow the instructions, and affirm the judgment.
All further statutory references are to the Penal Code. Defendant was also charged in counts 2 and 3, respectively, with the lesser offenses of forcible rape (§ 261, subd. (a)(1)), and forcible lewd act upon a child (§ 288, subd. (b)(1)), along with resisting an executive officer (§ 69) in count 4. Defendant was acquitted of the charge of resisting an executive officer.
The only issue presented on appeal focuses on the removal of a juror during deliberations. We will limit our recitation of the facts that support the conviction accordingly.
The victim, Luz, age 12, lived with her mother, Margarita, and three brothers at a house in Hayward. Renters also occupied Margarita’s house: Maria and her 16-year-old daughter Stephanie in one bedroom; and 20-year-old William in another bedroom. As a friend of William, defendant had visited the residence several times, and was acquainted with Margarita and Luz, although Luz had not spoken to defendant during his prior visits.
To preserve confidentiality, we will refer to the occupants of the house and guests by their first names.
On the evening of March 30, 2008, defendant visited his friend William at Margarita’s home. Others visited the residence that night as well. Luz testified that late at night she was in her brother Luis’s bedroom with Stephanie when defendant came in and “said he wanted to kiss” her. Luz became frightened, covered her face with her hands, said “no.” Defendant subsequently left the room, and Luz retired to her mother’s bedroom to sleep.
Luz later left the bedroom, closed the door behind her, and proceeded down the hall to the bathroom. As she opened the bathroom door, someone grabbed her “hard” from behind by the shoulder. She was pulled into the bathroom and the door was closed. The bathroom was dark, so Luz could not see until the light was later turned on that the person was defendant. Her clothes were removed and she was pushed to the floor on her back. Defendant “took off” his jeans and pushed his penis “in and out” of her vagina. Luz told defendant, “leave me alone, ” but he “still kept going.” When Luz again said, “leave me alone, ” defendant “got up” and “put his jeans on.” He then opened the door, turned the light on, and left.
The victim noticed that her vagina “was bleeding, ” so she “cleaned it up.” Luz feared that she “was going to get in trouble.” Luz testified that she did not want to have sex with defendant, and did so only because he grabbed her.
Stephanie testified that she was in the living room watching television when defendant tried to kiss her on the cheek. She pushed him away, whereupon he went into Luis’s bedroom. About five minutes later, Stephanie saw Luz in the hallway. Defendant was “trying to hug Luz, ” and she “pushed him off.” Luz then “went to the bathroom.” She did not come out for two hours, so Stephanie entered the bathroom and found Luz inside, with blood on the walls and on her thighs. The victim looked “scared.” Stephanie asked, “What happened?” Luz replied that defendant “penetrated her with his fingers” in “her vagina area, ” and “raped her.” Stephanie and Luz told Margarita “what happened, ” and she directed the victim’s brother Luis to call the police.
Hayward police officers arrived at the house five or ten minutes later, at 3:05 a.m., and contacted the victim’s mother on the front lawn. Margarita “stated that her daughter had been raped, ” and the “suspect was in the house.” She then walked the officers to William’s bedroom, where they forced the door open. When the police officers arrived, Stephanie was in the living room with Luz, who was crying. Stephanie observed defendant in the bedroom with a bat. Margarita pointed out defendant for the officers, and they subdued him after a scuffle. Luz identified defendant as the one who raped her.
The victim was taken to the hospital, where she underwent a sexual assault examination. Her hymen was swollen, bruised and bleeding, which was evidence of “penetrating hymenal injury.” The examining physician was not “able to tell if it was as a result of consensual or nonconsensual activity.” Swabs taken from the victim indicated the presence of her blood. Genital swabs taken from defendant tested positive for the presence of his semen and the victim’s blood.
The defense conceded that a sexual act between Luz and defendant occurred, but claimed it was consensual. Defendant testified that he and Luz hugged in the hallway of the house, as Stephanie was watching from the living room. They then walked “into the bathroom suddenly.” Defendant sat on the bathtub, and Luz sat on his legs. He unbuttoned the victim’s pants, and she “finished taking them off.” Defendant pulled his pants down, and they got on the floor, where they “started to” have sex, although he “didn’t go in all the way.” After less than two minutes Luz “said no more, ” so he “got up and left.” Defendant claimed that he “didn’t do anything by force, ” although he acknowledged that having sex with Luz was “a mistake.” Defendant admitted that he knew Luz “was a minor, ” but he was not sure “how old she was.”
DISCUSSION
Defendant argues that the trial court violated his “right to a fair and impartial jury trial” by excusing Juror No. 8 for misconduct. The contention requires that we delve into the record of the discharge of the juror in some detail.
On the first day of jury deliberations, the jury requested a readback of testimony from the victim and defendant. The next day the jury asked the court to “define the law around rape by force, fear, or threats, and the law’s definition of continue.” The court referred the jury to the CALCRIM No. 1000 rape instruction previously given to explain the element of forcibly continuing the act of intercourse despite the objection of the victim, and further advised the jury in accord with CALCRIM No. 200 that the word “continued” was “one of those ordinary words that we use in conversation every day, ” and does not “have any particular unique legal definition.”
The jury then sent the court notes that declared inability to agree on counts 1 and 4, and requested a definition of “violence” and “force” as related to the charge of resisting an executive officer. The court again advised the jury to define the words according to “their ordinary everyday meaning.”
Subsequently, two notes were sent to the court from the jury foreperson, Juror No. 5: the first asked for “guidance when jurors refuse to follow the law as we have been asked to follow;” the second related that although a verdict had been reached on count 4, the jury was unable to reach agreement on counts 1 through 3, and added that, “It has been expressed that nothing will change mind[s]. We have a juror who has shut down and is disruptive & hostile, and antagonistic.”
After taking the not guilty verdict on count 4, the court questioned the jury foreperson about the “nature of the problem” with the recalcitrant juror. The foreperson stated that particularly as to the instruction on “force, violence, menace, duress or fear, ” Juror No. 8 created “their own interpretation of the law” and used “their own perspective, and then they shut down. They won’t listen to the other jurors” or “talk about the evidence.” The foreperson stated that Juror No. 8 was “not willing to follow the law as it is stated, ” even when read the instructions “verbatim, ” and refused to deliberate. The juror declined to read the instructions or consider “what anybody says, ” and stated, “I’m not talking any more.”
The court then questioned Juror No. 8. When the court inquired if the juror had a “different definition” of “force or use of force” than given in the instruction, he replied, “Partly.” When asked to explain, the juror’s response was rambling and difficult to follow, but essentially denied that he was “using reasoning outside the law, ” although he agreed that the jurors had “different opinions as to what the law means.” Juror No. 8 agreed with the articulated principle that the jury should render a verdict “according only to the evidence presented to you and to the instructions of the Court, ” but expressed some disagreement with law of force as stated to the jury. He believed that some force was used, but not “throughout the act.”
When specifically asked by the court if he agreed with the instruction on force, Juror No. 8 did not reply directly, but instead stated: “It’s not too clear to me as to what the nature of the force that was involved, you know, but I suspect it was some force there, but prior to the actual act, you know.” The court repeated the inquiry, “can you follow the instruction on the force, on the use of force?” The juror flatly stated: “Not in the context of Count 1.” Juror No. 8 then once more attempted to explain his view of the facts by stating: “I believe that he should have known that she was a minor, but I think, you know, from my perspective he’s guilty of having sex with her, with a minor, and violence was used and stuff, but it wasn’t in the same vein that comes under Count – the Count 1, you know, where it was like a person engaging in sexual act with a stranger or being in a place where he wasn’t wanted and come in contact with a female and pursued this anger.”
The court continued to admonish the juror not to discuss the facts or his thought processes.
Upon consideration of the “totality” of the evidence the trial court found that Juror No. 8 “is unable to perform his duty as a juror for failure to follow the instruction of the Court as relates to force and violence.” Juror No. 8 was excused from service pursuant to section 1089, and an alternate juror was seated. Soon thereafter a guilty verdict on count 1 was reached.
“ ‘A trial court’s authority to discharge a juror is granted by Penal Code section 1089, which 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 duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors.” ’ ” (People v. Ramirez (2006) 39 Cal.4th 398, 458, citing People v. Williams (2001) 25 Cal.4th 441, 447–448.) “The trial court may discharge a juror for good cause at any time, including during deliberations, if the court finds that the juror is unable to perform his or her duty.” (People v. Lomax (2010) 49 Cal.4th 530, 588.)
“A juror who refuses to follow the court’s instructions is ‘unable to perform his duty’ within the meaning of Penal Code section 1089. As soon as a jury is selected, each juror must agree to render a true verdict ‘ “according only to the evidence presented... and to the instructions of the court.” ’ [Citation.]” (People v. Williams, supra, 25 Cal.4th 441, 448; see also People v. Estrada (2006) 141 Cal.App.4th 408, 415.) Jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. (People v. Wilson (2008) 43 Cal.4th 1, 26–27.) “A deliberating juror’s refusal to follow the law set forth in the instructions also constitutes a failure to perform the juror’s duties, and is grounds for discharge.” (People v. Alexander (2010) 49 Cal.4th 846, 926 ; see also People v. Engelman (2002) 28 Cal.4th 436, 442; People v. Williams, supra, at p. 463.) “[W]hen the record does establish that a deliberating juror is unwilling to apply the law as instructed by the court, ‘a juror’s purposeful disregard of the law as set forth in the court’s instruction may constitute just cause for that juror’s removal” and substitution with an alternate. (People v. Williams, supra, at p. 460; see also People v. Wilson (2008) 44 Cal.4th 758, 834–835; People v. Ledesma (2006) 39 Cal.4th 641, 738.)
“Refusal to deliberate also may subject a juror to discharge [citation], even though the discovery of such misconduct ordinarily exposes facts concerning the deliberations—if, after reasonable inquiry by the court, it appears ‘as a “demonstrable reality” that the juror is unable or unwilling to deliberate.’ [Citation.]” (People v. Engelman, supra, 28 Cal.4th 436, 443–444.) “ ‘A juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge. [Citations.]’ [Citations.] ‘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.’ [Citation.]” (People v. Lomax, supra, 49 Cal.4th 530, 589.) “A juror who expresses a fixed conclusion at the start of deliberations and rebuffs attempts to engage him or her in the discussion of other points of view raised by other jurors has refused to deliberate, and properly may be discharged. On the other hand, ‘[t]he circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.’ [Citation.]” (People v. Alexander, supra, 49 Cal.4th 846, 926.)
“The juror’s inability to perform the functions of a juror must appear in the record as a ‘demonstrable reality’ and will not be presumed. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1158.) “Although decisions to investigate juror misconduct and to discharge a juror are matters within the trial court’s discretion [citation], ” the California Supreme Court has “concluded ‘a somewhat stronger showing’ than is typical for abuse of discretion review must be made to support such decisions on appeal. [Citation.]” (People v. Lomax, supra, 49 Cal.4th 530, 589.) The trial court’s discretion under section 1089 “is ‘bridled to the extent’ the juror’s inability to perform his or her functions must appear in the record as a ‘demonstrable reality, ’ and ‘court[s] must not presume the worst’ of a juror. [Citations.]” (People v. Bowers (2001) 87 Cal.App.4th 722, 729.) “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.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052–1053.)
“[T]rial courts are frequently confronted with conflicting evidence on the question whether a deliberating juror has exhibited a disqualifying bias. [Citation.] ‘Often, the identified juror will deny it and other jurors will testify to examples of how he or she has revealed it.’ [Citation.] In such circumstances, the trial court must weigh the credibility of those testifying and draw upon its own observations of the jurors throughout the proceedings. We defer to factual determinations based on these assessments.” (People v. Lomax, supra, at p. 590.) “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.” (People v. Barnwell, supra, at p. 1053.)
While Juror No. 8 may not have exhibited an unconditional unwillingness to engage in the deliberative process, we find abundant evidence to support the trial court’s finding that in his deliberations he refused to follow the law expressed in the instructions. First, the trial court learned from the jury foreperson that Juror No. 8 adhered to his “own interpretation” of the law of force, and refused follow the law as stated in the instructions given by the court and read to him during deliberations. The juror even declined to read the court’s instructions when asked to do so by the other jurors. The information received by the court from the foreperson demonstrated persuasively that Juror No. 8 was refusing to follow the court’s instructions on the law. (People v. Alexander, supra, 49 Cal.4th 846, 927–928.)
When Juror No. 8 was thereafter questioned by the trial court, his discussion of the case, while lacking in clarity, revealed that his singular perspective was both inconsistent with the court’s description of the law, and intractable. The juror seemed to indicate to the court that, contrary to the law, he could not find the use of force or violence necessary to constitute rape if it occurred “prior to the actual act, ” at least unless it was in the context of “a person engaging in sexual act with a stranger or being in a place where he wasn’t wanted and come in contact with a female and pursued this anger.” This statement indicates a viewpoint by the questioned juror that would limit the alleged offense to a predatory assault on a stranger; a factual context not presented in this case on trial and not limited by the criminal statute charged in the information. Juror No. 8 also unequivocally disclosed in response to the trial court’s direct query that he could not follow the instruction on the use of force in the context of count 1.
The totality of the evidence establishes as a demonstrable reality the juror’s inability to perform the functions of a juror, which includes the obligation to follow the instructions of the court. (People v. Barnwell, supra, 41 Cal.4th 1038, 1053.) The juror was not discharged due to his views on the merits of the case or disagreement with other jurors, but rather on valid constitutional grounds. (People v. Wilson, supra, 43 Cal.4th 1, 26–27.) We therefore conclude that the trial court did not abuse its discretion or violate defendant’s constitutional rights by excusing Juror No. 8. (People v. Lomax, supra, 49 Cal.4th 530, 592.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J.Banke, J.