Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of San Bernardino County, No. FV1025720 John M. Tomberlin, Judge.Affirmed.
McDONALD, J.
Sergio Peredia and Maribel Lopez were jointly tried before separate juries for the murder of Erik Bermudez. Peredia's jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)), and found true that he personally used a firearm to kill the victim (§ 12022.53, subd. (d)). Lopez's jury found her guilty of first degree murder. (§ 187, subd. (a).) The court sentenced Peredia to 50 years to life, and sentenced Lopez to 25 years to life. Peredia and Lopez separately appeal.
All further statutory references are to the Penal Code unless otherwise specified.
In both appeals, Peredia and Lopez assert the trial court abused its discretion by admitting into evidence three autopsy photographs of the victim. In Lopez's separate appeal, she asserts the court erred by not instructing on the defense of necessity. In Peredia's separate appeal, he asserts the court mishandled the inquiry into alleged jury misconduct and erred in dismissing one juror while retaining another.
I
FACTS
A. Prosecution Evidence Presented to Both Juries
Bermudez knew Lopez, liked her, and occasionally gave her drugs. Bermudez disappeared on the night of October 17, 2006. He was driving his Ford Explorer, which had expensive rims and an expensive stereo. Bermudez's mother reported him missing to police the following morning.
On October 19, 2006, a passerby spotted Bermudez's car on fire and called 911. Authorities responded to the call, extinguished the fire, and impounded the car. The following day, authorities returned to the site and followed tire tracks for about three-tenths of a mile to a second crime scene, where they found another burn pile. They found clothing, paper, a music CD and a fake soda can typically used to hide drugs. On October 22, police interviewed Mr. Barboza, and he eventually gave police information that led them to search a third crime scene in the area around Sanchez Ranch. There, police found drag marks, potential pools of dried blood, and tire tracks matching those found at the two burn sites.
The trial testimony from Mr. Barboza and his wife showed that around 10:00 p.m. on the night of the murder, Peredia and Lopez came to Barboza's house and asked him to purchase beer for Peredia, but Barboza declined. Peredia and Lopez left but returned a few hours later, arriving around 2:30 a.m. At that time, Peredia told Mr. Barboza that Peredia had gotten into a fight and "offed" someone. Peredia had blood on his pants and was carrying a gun. Peredia wanted Barboza to give him a ride after Peredia dropped off the car he was driving. Barboza eventually agreed to give the requested help, and did follow Peredia for a while, but Barboza ditched Peredia before fulfilling his agreement to give him a ride. The next day, Peredia again contacted Barboza. When they met, Peredia admitted he shot someone in the head, burned the body, and buried it, but claimed he acted in self-defense. He asked Barboza to provide Peredia with an alibi. Barboza eventually gave this information to police.
On October 26, 2006, police interviewed Jacob and Juan Alvarez, and the information from the Alvarezes led police to the site near Sanchez Ranch where they found Bermudez was buried. Police excavated Bermudez's body the following day. It was naked, charred, and a rope was tied around the ankles. Police found tire treads matching the tire treads found at the other crime scenes.
The trial testimony from the Alvarez brothers showed that Peredia and Lopez arrived at the Alvarezes' house late on the night of October 17, 2006; Peredia was driving Bermudez's car. Peredia claimed he "blasted" someone for rims and a stereo. He asked for a shovel, rope, and a gas can, which the Alvarez brothers gave to him. The four then drove to a gas station and filled the gas can. They then drove to Sanchez Ranch. On the way to Sanchez Ranch, Peredia again explained he had killed someone and needed help to dispose the body. Peredia said that a drug buy went bad, and he panicked and shot Bermudez in the head and heart. When they arrived at Sanchez Ranch, the Alvarez brothers saw a body stripped of its clothing with bullet holes in the head and chest. They dragged the body into the car and drove off the road into the desert. Peredia stopped, dug a hole, dragged the body into the hole, poured gasoline on it, and set it afire before burying it. Peredia then drove the brothers back to their home and showed them the gun he had used.
A pathologist conducted an autopsy. Bermudez had been shot twice, once in the chest and once in the head. The chest shot was not fatal. The fatal shot was to the head, and the bullet entered near the right eye and exited near the left ear.
B. Peredia's Statements to Police (Peredia's Jury Only)
Peredia was interviewed on October 23 and 24, 2006, and his statements were admitted before his jury only. In his first interview, he denied any involvement in Bermudez's death, and claimed he was at Barboza's house on the night of the murder.
In his October 24, 2006, statement, Peredia claimed he and Lopez went with Bermudez to the desert, where he and Bermudez got into a verbal fight. Peredia hit Bermudez in the nose, and Bermudez stopped his car, got out of his car, and menaced Peredia with a small knife. Peredia and Lopez then took Bermudez's car and left him in the desert, but did not kill him. Peredia later tried to burn Bermudez's car. He denied killing Bermudez and claimed he acted in self-defense.
Police did not find a knife in any of the numerous locations they searched.
C. Lopez's Statements to Police (Lopez's Jury Only)
Lopez was interviewed three times, and her statements were admitted before her jury only. In the first interview, Lopez denied any involvement in or knowledge of what happened to Bermudez, and denied seeing Bermudez the night of his murder.
In an interview three days later, Lopez admitted she knew the circumstances surrounding Bermudez's death. She knew Bermudez was coming to her home, Peredia would also be there, and that Peredia had a gun; and thought Peredia might want to steal something. When Bermudez arrived, Peredia and Lopez asked him to drive them to a liquor store, but the store was closed when they arrived. They then drove to the desert. After arriving, they drank together, but Lopez need to urinate, so she went behind the bushes with some toilet paper. As she was returning, she heard a gunshot. When she saw Bermudez had been shot, she ran off, but Peredia caught up to her driving Bermudez's car and told her to get in. They drove across town, enlisted the aid of two of Peredia's friends, and returned to the scene with gas. Peredia and his friends dug a hole, and then buried the body. After dropping off Peredia's friends, they returned to the desert in Bermudez's car and slept there. The next morning, they unloaded Bermudez's possessions and burned them. They then drove to an aqueduct where Peredia disposed of the gun.
In a third interview, which Lopez initiated a few weeks later, she told police Peredia knew Bermudez was coming to Lopez's house and Peredia got there before Bermudez. About a half-hour before Bermudez arrived, Peredia told her he was going to rob Bermudez and showed her a gun he was carrying, but promised not to kill Bermudez. At some point, Peredia threatened to shoot or hit Lopez if she did anything stupid. Peredia asked whether there was any way Bermudez would accompany Peredia without Lopez, but she responded he would not go with Peredia because he did not know him, and that she would have to accompany them to create the opportunity for Peredia to rob Bermudez.
II
COMMON APPELLATE CLAIM
Peredia and Lopez assert the trial court abused its discretion when it overruled their objections to the introduction into evidence of three photographs taken by the pathologist during Bermudez's autopsy.
A. Background
Before the pathologist testified, the prosecution moved to admit three autopsy photographs. Exhibits 45 and 47 showed the entry and exit wounds to Bermudez's head, and Exhibit 46 showed the entry wound to his chest. The prosecution contended the photographs were relevant to show malice and premeditation and to illustrate the pathologist's findings, and because the condition of the body also showed Peredia and Lopez tried to obscure Bermudez's identity to prevent authorities from linking him to them. Peredia and Lopez objected under Evidence Code section 352, arguing that all parties agreed the photographs were particularly "grisly, " and because there is a "nice diagram that seems to be clean enough" to convey the same information about the bullet wounds, the prejudicial impact of the photographs outweighed their probative value. The court, after noting the pathologist believed the photographs would assist in illustrating his testimony and the photographs had relevance for the reasons stated by the prosecution, overruled the defendants' objections.
During the pathologist's testimony, prior to the prosecutor showing the exhibits to the pathologist, Peredia and Lopez renewed their objections, arguing the pathologist's testimony was that the head wound was almost immediately fatal, and there was no additional probative value gained from the autopsy photographs. After additional argument, the court ruled that although the photographs were "ghastly, " they were "not more ghastly than in these circumstances one would expect in a situation where a body has been shot, burned and buried.... [T]hose kinds of activities present us with bad things to look at, and I don't think that I can in good [conscience] say to [the prosecutor] that he doesn't have the ability to illustrate... what the evidence is in this case."
B. Legal Principles
Appellate courts are " 'often asked to rule on the propriety of the admission of allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. [Citation.] " '[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant' " [citation], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative [citation]. A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1282; accord, People v. Hinton (2006) 37 Cal.4th 839, 896.) The discretion applies equally to an autopsy photograph, which may be admitted as "pertinent because it showed the 'nature and placement of the fatal wounds...' [citation]... [or] supported the prosecution's theory of how the murders were committed [citation] [or] illustrated the testimony of the coroner and percipient witnesses." (People v. Loker (2008) 44 Cal.4th 691, 705.)
C. Analysis
We have examined the complained-of photographs and conclude that, although they are indeed graphic and unpleasant, the trial court did not abuse its discretion in permitting the prosecution to introduce them into evidence. We begin with the oft noted truism that " ' "murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant." ' " (People v. Roldan (2005) 35 Cal.4th 646, 713, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The photographs showed the nature and placement of the wounds, as well as illustrated the pathologist's testimony in which he stated that Bermudez was first shot in the chest before the killer fired the fatal shot to his head. The photographs also depicted the postmortem immolation of Bermudez. Because the photographs were limited to those showing the nature and placement of the wounds, and supported the prosecution's portrayal of how the murder was committed and how the killers subsequently acted, it was admissible to "illustrate[] the testimony of the coroner and percipient witnesses." (People v. Loker, supra, 44 Cal.4th at p. 705.)
The photographs also had distinct relevance in each of the separate trials. As to Peredia, who argued for either acquittal (based on self-defense) or manslaughter (based on a killing in heat of passion), the timing and placement of the shots undercut those defenses. A jury could infer that the first shot to the chest would have felled Bermudez, or at least sufficiently impeded him from posing any further threat to Peredia; however, rather than withdraw, Peredia placed a second shot with precision into Bermudez's head guaranteed to cause death, and the shot required some degree of calmness and manifested a deliberate intent to kill. Finally, the burned condition of the body could have supported an inference Peredia and Lopez tried to obscure Bermudez's identity (supporting an inference they subjectively knew this was not a case of self-defense), and the burned condition of the body also corroborated the veracity of the inculpatory evidence given by the Alvarez brothers concerning Peredia's interaction with them on the night of the murder.
The photographs had a separate relevance in Lopez's trial. The photographs illustrated the pathologist's testimony concerning the timing and placement of the shots, and buttressed the veracity of the portion of Lopez's statements to police that Peredia shot Bermudez and then dragged him to the bushes while he was still alive, and then started going through his pockets before again shooting him in the head. This evidence provided support for the prosecution's felony-murder theory against Lopez—that the killing was connected to a robbery of Bermudez—and it provided the basis for a jury to infer that because Lopez's statements about how the murder occurred were true (because they were consonant with the physical evidence), the other portions of her statements to police (about planning the crime) were credible.
The primary argument on appeal is that, because the pathologist's testimony could have confirmed both the pathways of the bullets and the burned condition of the body, there was no need for the photographs. However, even assuming the photographs simply corroborated witness testimony as to how the murder and cover-up occurred, this does not establish that the trial court abused its broad discretion in admitting the photographs into evidence. " '[P]rosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case.' " (People v. Roldan, supra, 35 Cal.4th at p. 713.) Although Peredia and Lopez appear to assert the photographs should have been excluded because there was little dispute over the trajectory and timing of the bullets or the burned condition of the body, a prosecutor is entitled to prove his or her case and need not " 'accept antiseptic stipulations in lieu of photographic evidence.' [Quoting People v. Pride (1992) 3 Cal.4th 195, 243.]" (People v. Loker, supra, 44 Cal.4th at p. 705.) On this showing, we do not conclude the prejudicial effect of the photographs so clearly outweighed their probative value to render the trial court's ruling an abuse of discretion.
III
LOPEZ'S SEPARATE APPEAL
Lopez asserts the trial court erred by not sua sponte instructing on the defense of necessity. She points to the evidence (contained in her statements to police) that on the night of the murder she was expecting to rendezvous with Bermudez, but Peredia learned Bermudez was coming to Lopez's house and met with Lopez before Bermudez arrived. Peredia told Lopez he was going to rob Bermudez and showed her a gun he was carrying. Peredia promised not to kill Bermudez, but threatened her if she did anything "stupid."
A. General Legal Principles
Even without the request of either the prosecution or defense, a criminal trial court ordinarily has a duty to instruct the jury on those principles of law relevant to the jury's determination and its understanding of the case. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) This duty arises both to protect a defendant's right under the California Constitution to have his or her case decided by a jury fully informed on the law, and to further the public policy of ensuring that the " 'strategy, ignorance, or mistakes' " of either the prosecution or defense do not preclude the jury's factfinding function, thereby diminishing the " 'overall administration of justice.' " (People v. Breverman (1998) 19 Cal.4th 142, 155 (Breverman).)
Even with these important policy goals, the trial court's duty to instruct sua sponte on affirmative defenses is more limited than, for example, its broad duty to instruct a jury on lesser included offenses of the crimes charged. (Breverman, supra, 19 Cal.4th at p. 157; People v. Barton (1995) 12 Cal.4th 186, 195.) The trial court's limited duty to sua sponte instruct the jury on affirmative defenses does not obligate it to " 'ferret out all defenses that might possibly be shown by the evidence [since such a rule would] " 'put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.' " ' " (Breverman, at p. 158.) Rather, the sua sponte duty is designed in part to provide a safeguard against the possibility defense counsel has mistakenly overlooked an obvious defense theory. (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled on other grounds by Breverman, at p. 149.)
A court's duty to sua sponte instruct regarding a defense arises only "if there is substantial evidence of the defense and if it is not inconsistent with the defendant's theory of the case." (People v. Wilson (2005) 36 Cal.4th 309, 331.) Evidence of a defense is sufficiently substantial to trigger a trial court's duty to sua sponte instruct the jury if it is "evidence that a reasonable jury could find persuasive." (People v. Barton, supra, 12 Cal.4th at p. 201 , fn. 8.) It has also been defined as "evidence sufficient for a reasonable jury to find in favor of the defendant." (People v. Salas (2006) 37 Cal.4th 967, 982.)
B. Analysis
Lopez argues there was substantial evidence to support the defense of necessity. To determine whether substantial evidence existed to compel the trial court sua sponte to instruct the jury on necessity, we examine the definition of that defense. Although a necessity defense is recognized in California (see In re Eichorn (1998) 69 Cal.App.4th 382, 388), its scope "is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct [only] if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile." (People v. Beach (1987) 194 Cal.App.3d 955, 971, superseded by statute as stated in People v. Neidinger (2006) 40 Cal.4th 67, 76-79.) "Necessity does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of the crime." (People v. Heath (1989) 207 Cal.App.3d 892, 901.)
"To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that she violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which she did not substantially contribute to the emergency." (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135.) An instruction on the affirmative defense of necessity is only required when the defendant meets his or her burden of proving there is sufficient evidence from which a reasonable jury could find each element of the defense. (People v. Salas, supra, 37 Cal.4th at p. 982; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165.)
There was no evidence to compel sua sponte instruction on the necessity defense. First, because Lopez did not testify, there was no evidence why she did not call police or otherwise seek assistance to preempt Peredia's plan during the 30-minute window between the time she allegedly first learned he intended to rob Bermudez and the time Bermudez arrived. There is no sua sponte obligation to instruct on the defense of necessity when the defendant does not provide evidence to "establish the absence of a reasonable legal alternative to committing the crime[]." (People v. Kearns, supra, 55 Cal.App.4th at p. 1135.)
Moreover, the only evidentiary basis for her claim rests on a single snippet (contained in her third statement to police) that "if I like screamed or like if I acted stupid, he was gonna slap me or he was gonna like or if he had to shoot me or whatever, that he would do it." However, she then (in an apparent continuation of that statement) went on to say:
"And I don't know if this is true about his friends [apparently referring to the Alvarez brothers], but this is what he made me believe. After we dropped off his friends, [Peredia] told me, my friends told me to kill you, and I was like, why are you telling me this? And he was like because I'm just tellin' ya that they told me to tell ya cuz you're the only one, you're the only one that can say something...."
When read in this context, Lopez's statement that Peredia would shoot her if she "screamed or... acted stupid" was equally understandable as a threat made after the murder (in accord with the advice given by the Alverezes to Peredia) and that Peredia wanted to make sure Lopez knew the consequences if she (as "the only one that can say something") went to the authorities. With this latter reading of her statement, there is not only insufficient evidence, but no evidence, to support the necessity defense because there was no evidence any coercion was exercised before Lopez agreed to act as "bait" in Peredia's planned robbery. More than a scintilla of evidence is required before sua sponte instructional obligations arise (cf. Breverman, supra, 19 Cal.4th at p. 162 ["the existence of 'any evidence, no matter how weak' will not justify instructions"), and we conclude there was no evidence of sufficient substantiality to require sua sponte instructions on the defense of necessity.
IV
PEREDIA'S SEPARATE APPEAL
Peredia argues the trial court erred (1) in connection with the manner in which it investigated alleged jury misconduct, and (2) by dismissing one juror (Juror 10) and retaining another juror (Juror 3) after completing its investigation.
A. Background
Shortly after Peredia's jury began deliberations, the court learned that one of the jurors (Juror 3) had handed a note to Jason Patrick, the bailiff in charge of Peredia's jury, that raised issues of potential jury misconduct. Bailiff Patrick explained Juror 3 had given him the note as the jury was en route from the courtroom to the jury room to begin deliberations and, in a private conversation, told him Juror 10 had approached her earlier that day as the jurors were leaving for lunch. Juror 10 asked to have lunch with Juror 3 and said she (Juror 10) didn't care if she got kicked off the jury and needed to talk to someone about an issue. Juror 3 also told the bailiff that she 3 declined to talk with Juror 10 and then left for lunch alone. The court, after observing that it appeared Juror 10 had engaged in misconduct, asked defense counsel for an opinion on how to proceed. Peredia's counsel stated that, "The short answer to that is excuse Juror Number 10. [¶]... [¶]The long answer is to question [Juror] Number 10 if [she's] talked to anybody else and what's been said." (Italics added.) The prosecutor agreed Juror 10 should be questioned.
The note stated, "Jason, [¶] I need to talk to you... Juror # 10 discussed her [dis]comfort in sitting through this trial. She wasn't sure she can reach a verdict that she can live with for the rest of her life. She tried to make me see her point of view and I almost felt as if she was trying to persuade me to having her same belief.... I felt and still feel very uncomfortable by this."
The court then called Juror 10 to the court to determine what had transpired. Juror 10 contested the accuracy of Juror 3's description, stating that it was Juror 3 who initiated the conversation, and denying that she (Juror 10) ever said she wasn't sure she could reach a verdict that she could live with for the rest of her life.
When asked if she had spoken with anyone else about the circumstances of the trial, Juror 10 also revealed that another juror (Juror 4) had asked whether Juror 10 had read the newspaper and, in response to Juror 10's statement that she does not read the newspaper, Juror 4 replied that she reads the newspaper "cover to cover" and had read "about what happened when we left yesterday." The court later determined Juror 4 had read an article concerning the trial, and had relayed a synopsis of its contents to Juror 10. At that point, counsel stipulated that both Juror 4 and Juror 10 had to be excused.
The court then asked Juror 10 to wait outside to allow the court to call Juror 3 for additional questions. In response to the court's questions, Juror 3 contradicted Juror 10's version. Juror 3 maintained Juror 10 had (1) initiated the conversation in the parking lot, (2) said she wasn't sure she could reach a verdict that she could live with, and (3) started to give "more information of her view and her thoughts" to Juror 3.
The court and both counsel then conferred privately and apparently agreed the court was going to "have to make a credibility call" on which juror's version was accurate. The court then asked whether Juror 3 believed the interactions with Juror 10 had affected Juror 3's ability to decide the case fairly, and Juror 3 responded "No."
The court then had Juror 3 wait outside to allow the court to call Juror 4 back for additional questions and, following the questioning, both counsel stipulated that Jurors 4 and 10 needed to be excused. However, the prosecution mentioned that "all three" jurors might have to be excused, but that he would defer to defense counsel. The court first informed Juror 4 she was excused, and then called Juror 10 back to ask additional questions about her conversations with Jurors 4 and 3. After Juror 10 provided additional answers that contradicted the version of events as relayed by Juror 3, the court decided to call Juror 3 into the courtroom to conduct its inquiry with both jurors present, and the jurors gave sharply varying versions of the events in the parking lot.
Following the colloquy, the court asked Juror 3 to step outside. The court then informed Juror 10 that she was excused. After Juror 10 left, defense counsel opined that Juror 3 "is a problem." The court disagreed and found it had no reason to question Juror 3's credibility or her statement that she could be a fair and impartial juror.
B. Legal Framework
The ability to discharge a juror for misconduct is well established. "Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's 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.) "Such an inquiry is central to maintaining the integrity of the jury system, and therefore is central to the criminal defendant's right to a fair trial." (People v. Kaurish (1990) 52 Cal.3d 648, 694.) "[T]he court does have a duty to conduct reasonable inquiry into allegations of juror misconduct or incapacity—always keeping in mind that the decision whether (and how) to investigate rests within the sound discretion of the court." (People v. Engelman (2002) 28 Cal.4th 436, 442.)
As recently summarized by our Supreme Court in People v. Alexander (2010) 49 Cal.4th 846 at pages 926 to 927:
"The trial court's authority to discharge a juror includes the authority to conduct an appropriate investigation concerning whether there is good cause to do so.... As we have stated, 'a trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury's deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue... has not... committed misconduct, and that no other proper ground for discharge exists.' [Quoting People v. Cleveland (2001) 25 Cal.4th 466, 485.] Nonetheless, the need to protect sanctity of the deliberations does not mean that any inquiry into the deliberation process violates the defendant's constitutional or statutory rights: 'secrecy may give way to reasonable inquiry by the court when it receives an allegation that a deliberating juror has committed misconduct.' [Quoting People v. Engelman, supra, 28 Cal.4th at p. 443.] On appeal, we review for abuse of discretion the trial court's decisions concerning whether and how to investigate the possibility that a juror should be discharged for failure to perform his or her duties, and whether, ultimately, to discharge the juror or to take some other action."
The decision on the method used to investigate the possibility of juror bias, as well as the ultimate decision to retain or discharge a juror, rest within the sound discretion of the trial court. (People v. Engelman, supra, 28 Cal.4th at p. 442; People v. Beeler (1995) 9 Cal.4th 953, 989.) The court's decision on the extent to which a juror should be questioned is discretionary and, among other information, can provide the court with the ability to observe a juror's demeanor that it may take into consideration in evaluating whether good cause exists for discharge. (People v. Beeler, supra; accord, People v. Lucas (1995) 12 Cal.4th 415, 488-489.)
C. Analysis
Peredia first argues it was improper to remove Juror 10, because the inquiry was so intrusive that it revealed Juror 10 had reservations about convicting Peredia because of his age, and it is improper to dismiss a juror based on the juror's reservations about the guilt of a defendant. We are not persuaded by Peredia's claim. First, Peredia stipulated that Juror 10 must be removed, and that precludes him from seeking reversal on appeal based on Juror 10's dismissal. (Cf. People v. Valles (1979) 24 Cal.3d 121, 127; People v. Thornton (2007) 41 Cal.4th 391, 462.) Moreover, the basis for parties' agreement to remove Juror 10 was not that Juror 10 had reservations about Peredia's guilt, but was instead because Juror 10 had (1) attempted to discuss the case with Juror 3 outside of the jury room, and (2) received substantive information from Juror 4 that was improper. Even were this claim of error preserved, dismissal of Juror 10 was not an abuse of discretion because Juror 10 improperly discussed the case with two jurors before the matter was submitted and outside of deliberations, and received information about a news report regarding evidence excluded from Peredia's trial.
Peredia also argues that, once the court dismissed Jurors 4 and 10, it was reversible error to leave Juror 3 on the jury because the dismissal of Juror 10 could have potentially impacted Juror 3's impartiality. The apparent basis for this claim is that Juror 3 knew Juror 10 planned to vote for acquittal, and the judge's dismissal of Juror 10 may have psychologically influenced Juror 3. However, the court specifically asked Juror 3 whether she believed her interactions with Juror 10 had affected her ability to decide the case fairly, and Juror 3 responded "No." The following day, the court asked the entire jury, including Juror 3, a series of questions designed to determine whether the jury could "still arrive at a fair verdict based only on the evidence seen here in court, " as well as the arguments and instructions. All jurors, including Juror 3, responded they would be able to reach a fair verdict. The court, responding to defense counsel's motion for a mistrial on the grounds the entire jury was "tainted, " found that removal of Jurors 4 and 10 eliminated any taint arising from the misconduct of Jurors 4 and 10. Indeed, the court specifically found Juror 3 was highly credible (in part because she had precisely followed the court's instructions to alert the court to anyone trying to influence the jury before deliberations commenced), and therefore denied the motion. The court was entitled to credit these assurances when assessing whether Juror 3 could render a fair and impartial verdict (People v. Lucas, supra, 12 Cal.4th at pp. 488-489), and therefore the order denying a mistrial was not an abuse of discretion.
DISPOSITION
The judgments are affirmed.
WE CONCUR: McCONNELL, P. J.IRION, J.