Opinion
E080046
12-18-2024
THE PEOPLE, Plaintiff and Respondent, v. RONALD LEE PHIFER, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn Kirschbaum and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF2002486 Timothy J. Hollenhorst, Judge. Reversed.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn Kirschbaum and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
I. INTRODUCTION
Defendant and appellant Ronald Lee Phifer was convicted by a jury of one count of committing a lewd and lascivious act by force on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)). Defendant appeals, arguing that (1) the trial court erred when it overruled an objection to the prosecutor's exercise of peremptory challenge in violation of Code of Civil Procedure section 231.7; (2) the trial court erred when it dismissed a holdout juror for allegedly failing to deliberate during the course of jury deliberations; and (3) he is entitled to a correction of factual errors in his probation report. We conclude the trial court erred when it dismissed a holdout juror without conducting an adequate investigation to determine the truth of any allegations made against the juror. Given this conclusion, the judgment must be reversed, and we need not reach defendant's alternative arguments.
Undesignated statutory references are to the Penal Code.
II. BACKGROUND
A. Charges
Defendant was charged with one count of committing a lewd and lascivious act by force on a child under the age of 14 (§ 288, subd. (b)(1)), arising out of an incident on June 5, 2020. The information also alleged that (1) defendant had suffered a prior conviction for committing a lewd act on a child under the age of 14 that qualified as a serious felony (§ 667, subd. (a)) and strike offense (§§ 667.61, subd. (d)(1), 1170.12, subd. (b)); and (2) defendant had suffered a prior conviction for forcible rape of a child under the age of 14 that also qualified as a serious felony (§ 667, subd. (a)) and strike offense (§§ 667.61, subd. (j)(1), 1170.12, subd. (b)).
Because we resolve this appeal solely on the trial court's error in dismissing a juror during deliberations, we summarize only the facts relevant to this issue.
The jury began deliberations on Thursday, August 11, 2022. During the first two days of deliberations, the jury submitted several communications to the court regarding evidence related to the case. However, on the third day of deliberation, the jury submitted a communication to the court stating:" 'We are currently deadlocked at 11 to 1. We have deliberated since Friday with no change in this status. The single [juror] is no longer willing to deliberate, so we need to know what to do.' "
The communication was submitted on Monday, August 15, 2022.
In response, the trial court, with the consent of both counsel, agreed to request clarification from the foreperson. The foreperson was brought into the courtroom and the following exchange occurred:
THE COURT: Sir, I do not want to know where the parties stand on guilt or innocence. I do understand that it is 11 to 1. What I need from you this morning is some clarification about a juror who you have stated is no longer willing to deliberate. Please don't tell me who that juror is, just tell me what is happening in terms of this juror no longer deliberating. Is this juror not participating in discussion?
[FOREPERSON]: This juror hasn't really participated since day one. It's been stated several times that they feel like they're being attacked, even though we've done simple votes, you know, around the table. We had a session where we would, kind of, said, hey, everybody take five minutes and speak your peace. This person didn't speak.
THE COURT: Did not speak at all?
[FOREPERSON]: Didn't speak. Just when it got to their turn, they just said, you know, "I've already made my point known," and moved on. So, for us we were- we've been trying to say, you know, let's discuss because, you know, we could flip. Or, you know, maybe you saw something or heard something that I missed. And there is just a general unwillingness to share their stance other than their ultimate verdict.
THE COURT: Okay. So I understand the process so far, did the jury take a vote initially early in the deliberations?
[FOREPERSON]: Yes.
THE COURT: Okay. And this person stated their vote; is that correct?
[FOREPERSON]: Correct.
THE COURT: But since that time, this person has not participated really in any meaningful or productive way at all towards the discussion?
[FOREPERSON]: Not in any productive way. It's been stated, you know, one person, one other juror tried to ask, and they got very defensive and said, "Now I'm just being attacked, and I shouldn't have to feel this way." And, you know, we said, this is the process. We're supposed to be, you know, defending what we're-our position and our stance so that we can all agree.
You know, we, I mean, I think everybody knows the gravity of it, that lives are affected one way or another, and so, you know, we keep saying, like, let's make sure that we, you know, you know, some is, well, I can't be here past this date, and some of it is more of we just want to get it right, and so let's have this discussion and let's be right, because, you know, I keep trying to reiterate that no decision isn't a decision.
And so this morning I thought that we would have maybe a little bit deeper of that, and it's just been it's not worth it. I'm not, you know.
THE COURT: Ha[ve] any questions about the evidence or law been presented directly to this particular juror?
[FOREPERSON]: Yeah. We've, I mean, we've watched, you know, the videos. We've had questions, we've had, you know, discussions about our thoughts and why we believe the way we believe, or, you know, our scenarios, but there has never once been a, "Here is how I see it."
There was one statement that was made, and I don't think I can bring it up in this setting, but it was-and I even said, "Do you want me to ask for clarification, because the way we're reading the paper may not be exactly the way that we're supposed to interpret it." And said, "There is no point. It's not worth it."
THE COURT: So is it your belief that there has been no meaningful discussion amongst this one particular juror?
[FOREPERSON]: Yes.
THE COURT: Okay. This person has simply taken a position and is refusing to participate in the process?
[FOREPERSON]: Correct. [¶] . . . [¶] . . . I mean, even Friday we had . . . we had a read back, and . . . we were going to have a quick discussion, and "I need to leave" . . . And then coming in this morning . . ., it was, "Lets go over it." "No. It's fine," and so.
THE COURT: I know there has been several requests for readback. Has this person requested the readback or why
[FOREPERSON]: That's been our attempt to try to engage.
THE COURT: Okay. I see. All right.
Following this exchange, the trial court gave counsel an opportunity to question the foreperson, but both counsel declined to do so. The trial court then indicated its intent to question the holdout juror in order to "just talk to that juror and get his or her side of the story." Defense counsel agreed to that course of action. The prosecutor indicated that she would "submit to the Court on speaking with the juror," but expressed various concerns that doing so might impact the deliberative process.
After two recesses to further consider the matter, the trial court announced that it would dismiss the holdout juror without further inquiry. The trial court expressed its belief that the testimony of the foreperson was sufficient to constitute substantial evidence of a demonstrable reality that the holdout juror was refusing to deliberate. Defense counsel objected to the ruling.
The trial court then called the holdout juror to the courtroom, thanked her for her participation, and discharged her as a juror. In response, the juror inquired why she was being discharged; proceeded to recount several examples, which she believed constituted improper conduct by the other jurors; and expressed her belief that there was "a lot of badgering" by other jurors. The trial court thanked the juror for her comments, did not inquire further, and did not purport to reconsider its ruling in light of the juror's comments.
After the juror exited the courtroom, defense counsel again objected, stating: "My suggestion was to have [the holdout juror] come in so we could actually flush out what happened, as opposed to just believing one juror"; noted that the holdout juror's comments suggested there might have been another side to the story; and requested a mistrial. The trial court denied the motion for a mistrial, swore in a replacement juror, and sent the jury to begin deliberations anew.
C. Verdict and Sentence
The jury found defendant guilty on count 1. In a bifurcated proceeding, defendant admitted the truth of the special allegations that he had suffered two prior convictions that qualified as serious felonies and prior strike offenses. As a result, the trial court sentenced defendant to a term in state prison of life without the possibility of parole pursuant to section 667.61, subd. (j)(1). The court also imposed two consecutive terms of five years in state prison as a result of the prior serious felony convictions (§ 667, subd. (a)) and a term of 75 years to life in state prison as a result of his prior strike convictions (§ 667, subds. (c), (e)(2)(A)), but it stayed execution of these sentences pursuant to section 654. Defendant appeals.
III. DISCUSSION
On appeal, defendant argues (1) the trial court erred when it overruled an objection to the prosecutor's exercise of a peremptory challenge in violation of Code of Civil Procedure section 231.7; (2) the trial court erred when it dismissed a holdout juror for allegedly failing to deliberate during the course of jury deliberations; and (3) he is entitled to a correction of factual errors in his probation report. As we explain, the trial court erred when it dismissed a holdout juror for failing to deliberate without conducting an adequate investigation into the allegations. Given this conclusion, reversal is required, and we need not reach the remaining arguments raised by defendant in this appeal.
A. General Legal Principles and Standard of Review
Under section 1089, "[a] trial court may discharge a juror at any time during trial if the court finds that the juror is 'unable to perform his or her duty.' [Citation.] A juror who refuses to deliberate may be removed 'on the theory that such a juror is "unable to perform [her] duty" within the meaning of [section 1089].'" (People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong); People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland); § 1089.) Once a trial court is informed of allegations that, if proven true, would constitute good cause for a juror's removal, it is required to conduct an adequate investigation into the matter (People v. Burgener (1986) 41 Cal.3d 505, 520) and conduct a hearing to determine whether good cause, in fact, exists for removal (People v. Barnwell (2007) 41 Cal.4th 1038, 1051).
A trial court's decision to discharge a juror pursuant to section 1089 is reviewed for abuse of discretion under a" 'heightened standard [that] more fully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury.'" (Armstrong, supra, 1 Cal.5th at p. 450.) The juror's inability to perform his or her duty" 'must appear in the record as a demonstrable reality.'" (Ibid.) This standard is" 'more comprehensive and less deferential'" than the substantial evidence standard of review. (Ibid.) Instead of examining the record to determine whether there was reasonable, credible evidence of solid value upon which the trial court could have relied, we look at the evidence upon which the trial court actually did rely to determine whether it supports the trial court's conclusion in light of the entire record. (Id. at pp. 450-451; People v. Jones (2020) 50 Cal.App.5th 694, 701.)
B. Application
In this case, the trial court received a report that a single juror was refusing to deliberate. In response, it conducted an investigation that consisted solely of asking the jury foreperson to describe the events and allegations against the holdout juror. It then based its decision to discharge the holdout juror solely on the foreperson's account. The People argue that the foreperson's testimony was sufficient to support the trial court's determination and "nothing more was required." We disagree.
California authorities have made clear that under the applicable heightened standard of review, whether a juror's inability to deliberate has been shown as a demonstrable reality includes consideration of whether the inquiry conducted by the trial court was reasonably adequate in the first instance. "[I]f the court elects to dismiss a juror, the court's inquiry must be sufficient to support the dismissal." (Jones, supra, 50 Cal.App.5th at p. 703.) The inquiry "must be sufficient to determine the facts that demonstrate a juror's ability or inability to deliberate . . . and may not assume the worst about a juror without giving her an opportunity to explain herself." (Jones, at pp. 700701.) "At a minimum, [the trial court] must interview more than the complaining jurors.... It also should interview the alleged problem juror to obtain his or her response to the complaints." (Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 553; People v. Barber (2002) 102 Cal.App.4th 145, 150-152 [While a trial court is not required to question every juror, it may not restrict its inquiry to only those alleging misconduct by the holdout juror.].) Based upon these authorities, the inquiry conducted in this case was incomplete and, as a result, cannot support the conclusion that the holdout juror failed to deliberate as a demonstrable reality.
The People contend that we may affirm the trial court's decision because courts have upheld the dismissal of holdout jurors based upon testimony similar to that given by the jury foreperson, citing to People v. Lomax (2010) 49 Cal.4th 530 and People v. Diaz (2002) 95 Cal.App.4th 695. However, in both of these cases, the trial court reached its determination after conducting an inquiry that included inquiring of the juror engaged in alleged misconduct. (Lomax, at pp. 583-584; Diaz, at p. 700.) Had the trial court conducted a thorough inquiry, including but not necessarily limited to, providing the holdout juror a fair opportunity to explain herself and, thereafter, deciding to rely on the evidence supporting the holdout juror's refusal to deliberate, based upon an evaluation of credibility, we agree that the holdout juror's inability to deliberate could be supported by the record as a demonstrable reality. After all, even under the heightened standard of review, a reviewing court does not reweigh evidence. (Jones, supra, 50 Cal.App.5th at p. 701.) However, an inquiry that is limited to taking testimony of the allegations against a holdout juror without more is "constitutionally inadequate" and "fundamentally unfair because the court restrict[s] the evidence primarily to witnesses supporting [dismissal]." (Barber, supra, 102 Cal.App.4th at pp. 151-152.) In such a case, the trial court has not made a credibility determination because it has declined to accept or consider any disputed evidence in the first instance.
The People also suggest that after the holdout juror was dismissed, she made statements that confirmed the trial court's conclusion. However, these statements were made only after the trial court had already dismissed the holdout juror. While the trial court considered these statements in ruling on a subsequent defense request for a mistrial, there is no indication in the record that the trial court ever reconsidered its decision to dismiss the holdout juror based upon these statements. And under the heightened standard of review, we consider only evidence in the record upon which the trial court actually relied to reach its conclusions. (Jones, supra, 50 Cal.App.5th at p. 701; Lomax, supra, 49 Cal.4th 530 at p. 589; Armstrong, supra, 1 Cal.5th at pp. 450-451.) Thus, we cannot rely upon statements made by the holdout juror, after the trial court rendered its decision and dismissed the juror, as evidence in support of the trial court's conclusions.
Because the record in this case does not show that the trial court conducted an adequate inquiry in the first instance, the record does not support, as a demonstrable reality, the trial court's conclusion that the holdout juror was unable or unwilling to continue deliberating. Such an error is prejudicial and requires reversal of the judgment. (Armstrong, supra, 1 Cal.5th at p. 454; Cleveland, supra, 25 Cal.4th at p. 486; Jones, supra, 50 Cal.App.5th at pp. 704-705.) Additionally, because reversal is required on this basis, we need not address defendant's alternative argument that the trial court erred in overruling an objection to the exercise of a peremptory challenge by the prosecutor during jury selection and need not address defendant's additional argument that the probation report transmitted to the Department of Corrections pursuant to judgment contains a factual error.
IV. DISPOSITION
The judgment is reversed in its entirety. Retrial of the case is not barred by the double jeopardy clause of the California or United States Constitutions. (Armstrong, supra, 1 Cal.5th at p. 460.)
We concur: McKINSTER Acting P. J. MENETREZ J.