Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC624273
Premo, J.
Defendant Ronald David Rivers was convicted by a jury of multiple sex offenses, including aggravated oral copulation, aggravated sodomy and aggravated lewd and lascivious conduct, as well as several counts of furnishing controlled substances to minors. He was sentenced to a term of 285 years to life consecutive to a term of seven years and eight months.
On appeal, Rivers contends that the trial court improperly dismissed a juror, thus violating his statutory and constitutional right to a fair trial. He also contends that there was insufficient evidence of force or duress to support his conviction on certain counts relating to two of the three victims, Marshall S. and Jacob S.
At oral argument, Rivers’ counsel cited three cases, People v. Wilson (2008) 43 Cal.4th 1, People v. Watson (2008) 43 Cal.4th 652 and In re Bolden (2009) 46 Cal.4th 216, which had not been raised in the parties’ briefs. We gave the People an opportunity to address the newly-cited authorities in a supplemental letter brief, which we have since received and reviewed. None of these cases sheds new light on the issue of removing a juror for failure to deliberate.
We agree that the trial court committed prejudicial error when it dismissed a juror for failure to deliberate. We also find there is insufficient evidence of force or duress to support Rivers’ conviction on the charges of aggravated oral copulation, aggravated sodomy and aggravated lewd and lascivious acts. Accordingly, we reverse the judgment, remand for retrial and direct that retrial on counts 3 through 12 be limited to the charge of lewd and lascivious conduct on a child in violation of Penal Code section 288, subdivision (a).
All further unspecified statutory references are to the Penal Code.
I. Factual and Procedural Background
A. The prosecution case
Rivers had been friends with the victims and their parents since the oldest victim, Marshall, was in second or third grade. Marshall was friends with Rivers’ nephew, Ty, who was approximately the same age as himself. Rivers himself helped out at the school on occasion. When the molestations occurred between June 2000 and April 2001, Marshall was 15 and 16 years old and Jacob was 13 and 14 years old.
After befriending the family, Rivers would take the boys on trips and outings, such as to play miniature golf, race go-karts and to watch various sporting events. In January 2001, Rivers took all three boys to San Diego with him for the weekend, ostensibly to go sightseeing and to watch the Super Bowl on television. He also bought them gifts, including computer components, a stereo, CDs, movies and school clothes.
Prior to April 2001, the victims’ mother had no special concerns about Rivers and viewed him as a mentor, or even a “big brother,” to her sons. At the time, the boys’ father was self-employed, worked long hours and was often not at home.
1. The 2001 accusation by Rivers’ nephew and subsequent investigation
On April 25, 2001, police contacted the victims’ mother after one of Rivers’ nephews, Misako, told a police officer that Rivers was molesting Marshall, Daniel S., and Jacob.
Misako lived with Rivers for approximately three weeks in March 2001. When Misako moved in, Rivers told him he liked “younger men.” Two or three times a week, Rivers would tell Misako that he needed the apartment to himself because he intended to have a lover there. On one occasion, Rivers told Misako to be out of the apartment by 3:00 p.m., but Misako was a few minutes late. As he left, Misako saw Rivers driving up to the apartment with Marshall in his car.
Misako admitted that Rivers threw him out because Misako was “free-loading” off of him. Misako threatened to expose Rivers’ “secret,” and Rivers picked up a baseball bat, telling him to “Get the F. out of my house.” Misako left and, three days later, was arrested for robbery. While in custody on March 29, 2001, Misako told police that Rivers “told him that he was in love with [Marshall and Jacob].”
When asked at trial about his conversation with the police officer, Misako testified that he told the officer he believed that Rivers was “having relations” with Marshall. He could not recall telling the officer either that Rivers was also molesting Jacob, or that Rivers had said he was “in love” with Marshall and Jacob.
Thereafter, the victims’ mother forbade her sons from having any more contact with Rivers. However, sometime before the family moved out of the area in July 2001, Rivers showed up at their house with a letter in which Misako retracted the accusations, without explanation, and said that Rivers should be allowed to see the boys again. On cross-examination, Misako admitted that, in 1992 and 1993, he had falsely claimed to have been molested by other people.
Misako testified that he wrote the letter because Rivers promised to pay him $20 each week if he did so. At the time, he was in jail awaiting trial on charges of robbery and carjacking and, at Rivers’ urging, mailed the letter to Rivers rather than the victims’ mother, so that it would not have a county jail stamp on it.
The police closed their investigation after Marshall, Daniel and Jacob each denied that Rivers had molested them.
2. The 2005 investigation and arrest
Despite the victims’ mother’s directive that her sons have no further contact with Rivers, Rivers continued to telephone and email the boys. Jacob testified that Rivers called him once from Texas and told him he had met “another boy around the same age as I was, and blond hair, blue eyes, said that reminds him a lot of me, and they are starting to do ecstasy together.” In 2005, about a week after receiving an email from Rivers, Jacob had an emotional breakdown, after which he told his mother that Rivers molested him in 2000. Jacob said that Rivers had performed oral sex on him, sodomized him and given him drugs, specifically ecstasy. After Marshall and Daniel also admitted to having been molested by Rivers, their mother contacted the police.
A police officer, pretending to be Jacob, sent a pretext email to Rivers. In the first email, the officer wrote that he was “just a kid when we had sex” and that Rivers “took something from me that I can’t get back.” Rivers’ reply email stated, among other things, “there were things that happened between you and I that should not have happened.” Rivers also apologized for failing to “maintain the boundaries” of his “friendship” with Jacob.
The officer wrote back directly referring to the acts of oral copulation and sodomy, indicating he needed “truth and closure to move on.” Rivers’ response to this email was brief: “All I can say is that [I] was your friend then, am your friend now and will always be your friend.” The officer’s next email expressed disappointment in Rivers’ brief response, apologized for upsetting Rivers, if he had done so, and clarified that it was important to know, “why me?” Rivers replied the same day, denying that he was upset, but indicating that he was “remorseful for being irresponsible with the trust that you had instilled in me.” Rivers’ email added, “I’m not proud of a lot of my past, but I also know that it does little or no good to dwell on it.”
The police subsequently confronted Rivers with the emails as well as with the allegations that he molested Marshall, Daniel and Jacob. Rivers was arrested shortly thereafter and charged by information with two counts of aggravated sexual assault based on oral copulation and sodomy (§§ 269, 288a, 286, counts 1, 2); 10 counts of aggravated lewd and lascivious conduct (§ 288, subd. (b)(1), counts 3-12); eight counts of aggravated oral copulation with enhancements for multiple victims (§§ 288a, subd. (c)(2), 667.61, subds. (b), (e), counts 13-17, 28-30); nine counts of oral copulation with a minor under 16 (§ 288a, subd. (b)(2), counts 18-24, 31, 32); one count of attempted oral copulation with a minor under 16 (§§ 664, 288a, subd. (b)(2), count 25); two counts of aggravated sodomy with enhancements for multiple victims (§§ 286, subd. (c)(2), 667.61, subds. (b), (e), counts 26, 27); one count of oral copulation with a minor under 18 (§ 288a, subd. (b)(1), count 33); two counts of sodomy with a minor under 18 (§ 286, subd. (b)(1), counts 34, 35); three counts of furnishing methylenedioxymethamphetamine to a minor (Health & Saf. Code, §§ 11380, 11380.1, subd. (a)(3), counts 36, 39, 40); one count of furnishing marijuana to a minor under 14 (id., § 11361, subd. (a), count 37); and one count of furnishing marijuana to a minor 14 years or older (id., subd. (b), count 38).
3. Evidence relating to the molestation of Marshall
Marshall testified that in 2000, when he was 15 years old, Rivers hired him to perform data entry work for him at his apartment for $15 per hour. Marshall took the job because he was young and “needed money.”
About the third time that Marshall went to Rivers’ apartment to work, Marshall was sitting at the kitchen table using Rivers’ laptop computer. Rivers came up to Marshall on his knees, undid Marshall’s pants, reached inside and began to masturbate him. Rivers stood up, put his hand on Marshall’s forearm and walked him over to the couch. Marshall did not recall Rivers holding him in any way when he did so.
Rivers put on a pornographic video, then returned to the couch and resumed masturbating Marshall. Rivers pushed Marshall’s legs apart, knelt between them and performed oral sex on him.
Marshall was scared, but he did not tell Rivers to stop because Rivers was “bigger than me, taller, just bigger all around.... [I] was kind of intimidated by his size, so I wasn’t sure what to do.” He does not remember what Rivers was doing with his hands while he was being copulated. After Marshall ejaculated, Rivers smiled at him, then took him home.
Marshall testified about a second incident of oral copulation where Rivers had telephoned his nephew Ty and gave the phone to Marshall to talk. While Marshall was talking to Ty, Rivers came over, unzipped Marshall’s pants and began to masturbate him. Marshall hung up and Rivers again “guided” Marshall into the living room, touching his arm and pushing him in the direction he wanted him to go. Rivers sat Marshall down on the couch, put on a pornographic movie, positioned Marshall the way he wanted, removed Marshall’s pants, then masturbated and orally copulated Marshall. To the best of Marshall’s recollection, Rivers’ hands were on the couch the entire time. Again, Marshall was not okay with what Rivers was doing, but “had kind of gotten used to it” and “was too ashamed to do anything about it.” He did not tell Rivers to stop, because he was “still intimidated by [Rivers’] size.” At the time, Marshall was 5 feet 5 or 5 feet 6 inches tall and weighed 110 to 120 pounds. Rivers was 6 feet 3 inches tall and weighed 250 pounds.
Nearly every time Marshall came over to Rivers’ apartment, Rivers orally copulated him, following a similar routine. Several times, Rivers asked Marshall to reciprocate, but Marshall always refused. Instead, Rivers would put Marshall’s hand on his penis and Marshall would masturbate him.
The last two months that Marshall was working for Rivers, Rivers began to sodomize him. Marshall specifically recalled that in October or November of 2000, he was at Rivers’ apartment, kneeling on the floor in front of the television, playing a video game. Rivers came up behind him, undid Marshall’s pants, then removed his pants and boxers. Rivers pushed on Marshall’s back until Marshall was on his hands and knees. Rivers began to masturbate himself with lotion, then penetrated Marshall and ejaculated. Although it was intensely painful, Marshall did not tell Rivers to stop at any point, as he was not sure what Rivers would do in response.
On a second occasion, Marshall was again playing a video game at Rivers’ apartment and the same thing occurred. However, this particular time, Marshall said “No,” just before Rivers penetrated him. Rivers did not stop, though he quickly ejaculated.
Marshall testified that Rivers sodomized him on more than five other occasions, though he could not recall specifics about the circumstances. On at least some of those occasions, Marshall told Rivers, “No,” but Rivers sodomized him regardless.
At one point, Rivers tried to sodomize Marshall and Marshall, who was “sick and fed up with all of it,” told him, “No.” Rivers stopped, got a “really mean, angry face,” and then took Marshall home. A couple of days later, Rivers called Marshall’s parents and told them that Marshall was fired.
Marshall was relieved because Rivers would not molest him anymore. When asked why he did not quit, Marshall said Rivers was “bribing [him] with money and gifts.” Marshall admitted that Rivers never threatened or hit him nor did Rivers ever pay him additional money on top of what he was paid for the work he did. However, each time Rivers sodomized Marshall, he would later give Marshall something, such as new shoes, some CDs or movies.
Rivers next hired Marshall’s brother, Jacob, to do data entry work. Marshall was ashamed of what had occurred and did not warn Jacob about what Rivers had done to him.
4. Evidence relating to the molestation of Jacob
Jacob began working for Rivers in December 2000, working at Rivers’ apartment twice a week or so until the end of June 2001.
Within a month of starting work, Jacob was at Rivers’ apartment playing a video game when Rivers began massaging him, rubbing his shoulders and then his genitals. Rivers tried to remove Jacob’s pants, but Jacob told him to stop. Rivers complied, though he seemed to get mad, and about five minutes later, he took Jacob home.
Approximately a week later, Jacob was again playing a video game at Rivers’ apartment while taking a break from working. Rivers sat down next to him, began to rub his shoulders and chest, then got down on his knees. Rivers removed Jacob’s pants and performed oral sex on him. When Rivers started to remove his clothing, Jacob was scared and did not do anything, nor did he tell him “No” as he did the previous time. Throughout the act of oral copulation, Rivers had one hand on Jacob’s penis, while the other rubbed Jacob’s chest, but Rivers was not holding him down.
Jacob recalled another occasion where he was working on the desktop computer in Rivers’ bedroom when Rivers approached Jacob from behind, started massaging him, then pulled the chair out and “[k]ind of told me to get on the bed. So I did.” Rivers removed Jacob’s pants and performed oral sex on him. Jacob did not know if this incident took place before or after his 14th birthday.
On one occasion, before April 2001, Rivers again orally copulated Jacob and, after Jacob ejaculated, asked Jacob to reciprocate. Jacob refused, but agreed to masturbate Rivers instead.
In January 2001, Rivers took Marshall, Daniel and Jacob to San Diego, where he rented a suite at a Residence Inn in La Jolla. After they arrived that first night, Rivers purchased tequila, some of which Jacob drank. Rivers had also brought along with him a pornographic video that he played for the boys before they went to bed. During the weekend, he also had them watch a pay-per-view pornographic movie on the hotel’s television.
Originally, Jacob was going to sleep downstairs with his two brothers, but at some point after they arrived, Rivers said he wanted Jacob to sleep with him upstairs. When Jacob came upstairs to go to sleep, Rivers was already in bed. At some point during the night, Jacob woke up to feel Rivers pulling his underwear down. He then felt Rivers’ penis rubbing against his rectum. Jacob did not expect this to happen and was scared. Rivers rubbed his penis against Jacob’s rectum for about five minutes, then penetrated him. Jacob bit his lip, and told Rivers to stop. Rivers kept going for a little bit longer, then stopped, but Jacob could not recall if Rivers ejaculated or not. During this incident, Rivers had his arm around Jacob’s chest and stomach area. Jacob did not recall if he bled, but his rectum was painful afterwards.
On another occasion, Jacob stayed overnight at Rivers’ apartment. The next morning, Jacob was taking a shower, and Rivers asked to shower with him. Jacob did not object and, after getting in the shower, Rivers began touching himself. He then grabbed Jacob from behind, penetrated him and ejaculated. Jacob believed that this incident took place after his 14th birthday.
More than once, Rivers asked Jacob to sodomize him, saying that it was okay because Rivers’ father did it to him when he was a child. Rivers explained that it was also okay for Rivers to sodomize Jacob, but that if he told anyone what happened, Jacob would not be able to see Rivers any longer. Rivers told him that “what was going on was our business and nobody needs to know about it; that we weren’t doing anything wrong; it’s just we need to keep it secret.”
Jacob “didn’t know if it was right or wrong. I mean, he kind of showed me that it was right, but, I mean, I get older, and I realize it was wrong and everything. But, I mean, at the time, from everything he told me and showed me about it, it was the right thing to do. I kind of--I kind of didn’t think I was doing anything wrong.” Sometimes when Rivers was orally copulating him, Jacob would tell him “No” or “Stop,” but Rivers would just look up at him and continue. Jacob never physically tried to stop Rivers, and felt he did not have the option or the ability to stop him. Jacob did not want to anger Rivers and did not feel that he had the right to say no since Rivers was telling him that what was going on was okay. Rivers was much larger than Jacob, which factored into his thought process at the time. Also, Rivers was giving him gifts and paying attention to him, and was “almost like a second father” to Jacob.
At the time of these events, Jacob was 5 feet 3 inches to 5 feet 4 inches tall and weighed roughly 100 to 110 pounds. Jacob believed Rivers weighed approximately 250 pounds.
Rivers supplied Jacob with drugs, including marijuana and ecstasy, which they would use together. Jacob had previously used marijuana with some friends, but first began using ecstasy with Rivers. Jacob said the ecstasy “made my sensitivity and... sexuality enhanced.... [and] my comprehension to actually function as a sober person was gone.” Each time Jacob took ecstasy with Rivers, Rivers molested him.
5. Other prosecution evidence
The People presented expert testimony on the identification and effects of ecstasy on human physiology and expert testimony on Child Sexual Abuse Accommodation Syndrome. In addition, the People introduced several photographs of the victims taken in 2000 and 2001, copies of the pretext emails exchanged between Rivers and the police officer posing as Jacob, a declaration from the custodian of records for Rivers’ email account, a copy of Rivers’ driver’s license, the CD containing a recorded telephone conversation between Rivers and the police officer who had sent the pretext emails and a written transcript of that telephone conversation.
B. The defense case
Rivers was the only witness to testify for the defense.
During the relevant time period, Rivers was a telecommunications systems administrator for a company and often took data entry work home. He admitted hiring Marshall, Daniel, and Jacob to work for him at his apartment, but denied any inappropriate sexual contact with any of them. Rivers denied offering or furnishing drugs to any of the boys.
Rivers also testified that, during the San Diego trip, the original plan was that Rivers would sleep in one bed and the three boys would share the other two beds. On the first night, Jacob decided he would sleep in the same bed as Rivers and telephoned his mother to tell her he would be doing so. On the following evening, Daniel slept in the same bed with Rivers. Rivers denied touching either of the boys sexually when they shared the bed with him. He also denied allowing the boys to drink alcohol or watch pornography during the trip.
In April or May 2001, Rivers discovered that Misako had been stealing from him, so he threw him out of his apartment. Rivers subsequently learned that Misako had been arrested and, while in custody, had accused him of molesting Marshall, Daniel, and Jacob. Rivers visited Misako in jail and asked him to write a letter to the victims’ mother, retracting his allegations. Though he put money on Misako’s account while in jail, he had done that before and did not do it as “payment” for the letter to the victims’ mother. Rivers denied ever telling Misako that he was sexually attracted to boys or that he molested boys. He also denied ever telling Misako to leave the apartment so Rivers could have sex with someone there, but did ask him to leave when the boys would be working there in order to not be a distraction.
Rivers admitted that he gave each of the boys $300 to buy school clothes sometime around Christmas during 2000. The victims’ mother never asked him to stop buying them gifts, but asked only that he treat the boys equally.
As for the emails he sent in response to the pretext emails, Rivers testified that his initial response was altered by the police in order to incriminate him. He stated that he wrote “You’re right, there are a lot of things that have happened,” but did not write “between you and I that should not have happened.” When he wrote about failing to “maintain boundaries,” he was referring to allowing his nephew to make false accusations which disrupted his relationship with the boys. Although his responses did not deny the sexual conduct that was described in the pretext emails, Rivers believed that Jacob was suicidal and, as a paramedic, he knew that it is best not to discuss a depressed person’s issues.
Rivers testified that he had a “certification of paramedic as a clinician” and that certification qualified him to diagnose Jacob, based on the content of the pretext emails he received, as being depressed and suicidal.
When asked why the boys would falsely accuse him, Rivers said that, in the spring of 2001, the victims’ mother asked Rivers to have sex with her, but he rebuffed her harshly. It was within a month of his rejecting her that she told him not to contact her or the boys any longer.
C. The verdict and sentencing
The jury found Rivers guilty on all but two counts and found the multiple victims enhancements to be true. The trial court sentenced Rivers to a term of 285 years to life to run consecutive to a term of seven years, eight months.
Rivers was acquitted on one count of aggravated oral copulation (§ 288a, subd. (c)(2), count 17) and one count of oral copulation on a minor under 16 (id., subd. (b)(2), count 22). Jacob was the alleged victim in each of these counts.
Although Rivers was also convicted on counts 23 and 24, with Daniel as the victim, he does not challenge his conviction on those counts.
II. Discussion
A. Discharge of Juror No. 3
On May 23, 2007, approximately 40 minutes after deliberations began, the jury sent out a note requesting instruction on how to proceed if the jurors could not reach a consensus on some or all of the charges. After consulting with counsel, the trial judge instructed the jury that the verdict had to be unanimous as to each count, but the court should be advised if a unanimous decision could not be reached on some or all of the charges. Soon after receiving this instruction, the jury recessed for the evening.
The following morning, approximately two hours after the jury resumed deliberating, the foreperson sent out a note requesting guidance because, “[w]e have one juror who will not discuss or deliberate any of the counts in this case. His end position is that he simply disbelieves all testimony.” The trial judge brought out the jury, reinstructed the jurors on the duty to deliberate and directed them to resume deliberations. On the way back into the jury room, Juror No. 3 advised the bailiff that he wished to speak with the judge. The foreperson subsequently sent out a note to the same effect.
This note from the foreperson means that Juror No. 3’s disclosure, described in more detail below, could come as no surprise to either the court or trial counsel. This belies the People’s contention that Juror No. 3 “alone, and despite the court’s admonishments, revealed the substance of his position.”
The trial judge called in the foreperson to explain, cautioning him not to reveal the content of any deliberations or any votes taken by the jurors. The foreperson responded: “We began the deliberation process yesterday by taking a quick temperature as to whether we might find unanimously in any one particular direction or another. [¶] My expectation was that nobody would find unanimously not guilty. My expectation was that no one would find unanimously guilty. One juror [i.e., Juror No. 3] did choose the unanimous opinion. They [sic] ruled in a unanimous direction. And upon attempts to go further in the discussion and deliberations, they [sic] took a steadfast stand. Never, never able to discuss or never willing to discuss the reason for the stand or any particulars that caused them to take that stand. [¶] We, meaning the body of the jurors as a whole, were unable to discover the reason for the stand that this juror took.”
According to the foreperson, the rest of the jurors were deliberating, expressing their views and talking to each other about those views. Juror No. 3 had not participated in discussions “except to repeat a high level statement of his perception of sort of the end result.”
The court next examined, individually, Jurors No. 4 and 5. Again, prior to questioning them, the court advised the jurors that it did not want to know the content of the deliberations, what jurors were saying, which way they were voting, or which witnesses they believed or disbelieved.
Juror No. 4 said that Juror No. 3 stated his opinion up front and when other jurors asked probing questions about why he felt that way, he responded, “What’s the matter? Are you stupid? You don’t understand?” When asked if Juror No. 3 participated in the other jurors’ discussions, as far as either expressing his views, or maybe asking questions of other jurors about how they felt, Juror No. 4 said, “Yes.” According to Juror No. 4, Juror No. 3 said “he would be willing to listen to anything that we had to say, but in the end his opinion would not be changed.”
Juror No. 5 said that, during the first hour of deliberations, Juror No. 3 said that there was “nothing that we could say that was going to change his mind,” when the other jurors tried to engage him in further discussion. “[A]s far as discussing our views,... most everybody else was interested in discussing their views, but he was not interested. He just continually [restated] that this was his view.” Juror No. 5 indicated that, “at some point, [Juror No. 3] was getting agitated at us not believing him.” Juror No. 5 believed that, although he “may have said ‘Yes’ or ‘No’ or agreed or disagreed at some point [during deliberations],” Juror No. 3 was simply reaffirming his position when he did so, rather than actually considering other people’s opinions. When other jurors tried to engage him, Juror No. 3 would say “ ‘I don’t know how many times I have to tell you’; ‘I’m getting tired of this’; and, you know, ‘This is my position.’ It was, basically, just shutting down.”
The trial court then interviewed Juror No. 3. As it had with the other jurors, the court first cautioned Juror No. 3 that it was not interested in his views on Rivers’ guilt or innocence, or how he felt about certain witnesses. Despite these admonitions, Juror No. 3 immediately stated, “I feel it hasn’t been proven beyond a reasonable doubt. That’s where I’m at.” The court advised Juror No. 3 that “[i]f you have these beliefs as far as verdicts and stuff, that’s fine. But as far as the process [of deliberation] goes, it requires each juror to be able to talk to the others, and listen to the others, and go through the process. And what I’ve heard so far is they are not feeling that you want to go through that process.” Juror No. 3 said that he was willing to go through the process, “[b]ut I feel nothing has been proven to me, personally.” The following colloquy then took place.
Ante, footnote 8. We emphasize that the trial court appears to have taken every possible precaution to avoid the disclosures made by the foreperson and Juror No. 3.
“THE COURT: Okay. Have you felt comfortable telling the other jurors why you feel the way you are in explaining it? It’s like you do have a feeling about it?
“Juror No. 3: Right.
“THE COURT: That’s okay. But telling the jurors, just say, ‘Hey, listen, you know, I didn’t believe this witness,’ or ‘I thought this evidence’
“Juror No. 3: I did tell them that. I did tell them that.
“THE COURT: Okay.
“Juror No. 3: Yeah.
“THE COURT: Was there a conversation back and forth, where they said, ‘Well, what about this?’ It’s a give-and-take process.
“Juror No. 3: Exactly.
“THE COURT: I was wondering whether it was a give and take?
“Juror No. 3: Yeah. I was listening really well. I just didn’t believe beyond a reasonable doubt. I didn’t believe the witnesses beyond a reasonable doubt totally. That’s really where I’m at, Judge. That’s my opinion. And the other eleven, they have their own. But I asked them to discuss anything they wanted to discuss with me. Fine. I’m open to all that.
“THE COURT: Did you indicate to them that you were open to all that and the discussion, but that really wasn’t going to make any difference what they said?
“Juror No. 3: Well, the best way I can put it, if you don’t believe something, you don’t believe something. You can talk about it until now and a hundred years until now. That’s my feeling.
“THE COURT: Was there any real discussion about--was this discussion pretty much general, or did you ever go down to individual
“Juror No. 3: We didn’t go too deep. I said, kind of like, ‘Try to make me, you know, believe, turn me around,’ or whatever it may be. You know. [¶] In other words, they are pretty much if I don’t go their way, it’s either their way or the highway. [¶] Well, I have my beliefs. That’s it. And I think anybody should believe what they believe. Nobody should try to sway them either.
“THE COURT: Was the group ever able to get to a point where they were discussing individual witnesses, and what they had to say, or individual charges?
“Juror No. 3: Well, they did ask me, yeah. And I says, ‘I didn’t believe them. Straight up.’
“THE COURT: Did you go into any more depth other than that?
“Juror No. 3: Well, Judge, I don’t know how more perfectly clear I can make it. When you don’t believe somebody, you don’t believe them.
“THE COURT: Okay.
“Juror No. 3: That’s it.
“THE COURT: No. It’s pretty clear.
“Juror No. 3: Like, I believe in the Lord. You know, nobody can tell me that I don’t. [¶]... [¶]
“THE COURT: It’s been described to me that when they would inquire of you how you felt and stuff, you would tell them
“Juror No. 3: Oh, yeah.
“THE COURT: And then they would talk amongst themselves and see what else was going on. Were you listening to all of that?
“Juror No. 3: Certainly I was. Right.
“THE COURT: You were listening to all of that. Did you ever, when you heard someone say, ‘I believe this witness,’ or one thing or another, did you ever feel like, ‘Well, wait a minute,’ and insert your two cents, or you, basically, kind of listened to what was going on?
“Juror No. 3: I listened. Well, again, their beliefs and my beliefs are different. That’s--I don’t know how more perfectly clear I can make it.
“THE COURT: Did you ever feel, you know, in this give and take, did you ever try to convince the other people
“Juror No. 3: No.
“THE COURT: --that they maybe should consider your viewpoint?
“Juror No. 3: I think they already have their viewpoint.
“THE COURT: Okay.
“Juror No. 3: Yeah. They definitely, yeah.
“THE COURT: So, because, see, sometimes jurors change their mind. They have a discussion
“Juror No. 3: Exactly.
“THE COURT: --‘Listen, (Juror No. 3), I hear what you are saying, and I understand that.’
“Juror No. 3: They weren’t going that way.
“THE COURT: Okay.
“Juror No. 3: Or I wasn’t, you know, picking it up, I should say.
“THE COURT: Okay. Okay. But you were never--here is the point. They weren’t doing that with you. Were you doing that with them? Would you try to convince them, say, ‘Wait a minute, this was’
“Juror No. 3: Well, I did tell one of the ladies, she said, ‘Well, what would it make you take’--‘What would it take to make you believe differently?’ [¶] And I said, ‘Well, try to convince me.’ [¶] And she went through a few procedures, and so forth. I still didn’t believe.”
After Juror No. 3 returned to the jury room, the trial judge discussed the matter further with counsel and then granted the People’s request to replace Juror No. 3. In doing so, the judge noted that the foreperson, Juror No. 4 and Juror No. 5 “indicated that (Juror No. 3) expressed a fixed and conclusionary stance at the beginning of the deliberations, merely 30, 40 minutes into a case where there is [sic] 40 counts, multiple witnesses, complicated legal issues and thereafter refused to consider other viewpoints in a meaningful way, refused to articulate the viewpoint in a meaningful way.” Based on these findings, it appeared to the court “that there is a demonstrable reality that the juror is unable or unwilling to participate in a meaningful way in the process of deliberation.”
Rivers argues there was no good cause to discharge Juror No. 3 as required by section 1089 and that his constitutional right to a full and fair trial by an impartial and unanimous jury under the Sixth Amendment to the United States Constitution was violated. We agree with Rivers’ statutory argument and thus need not reach his constitutional claim. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231 [fundamental and long-standing principle of judicial restraint to avoid reaching constitutional questions unless it is necessary to decide them].)
Section 1089 provides, in 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,... the court may order the juror to be discharged and draw the name of an alternate [juror].” (Italics added.)
The removal of a juror under section 1089 is reviewed under the demonstrable reality standard, which differs from the substantial evidence test in that it “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. 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.)
It is clear that “deliberation” does not necessarily require formal discussion. (People v. Bowers (2001) 87 Cal.App.4th 722, 733.) Nor is it misconduct or a failure to deliberate where a juror makes up his or her mind “in the courtroom after hearing the first witness or almost immediately after deliberations start[].” (Ibid.)
It is also clear that the process of deliberation is personal. “The 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... does not constitute a refusal to deliberate and is not a ground for discharge.” (People v. Cleveland (2001) 25 Cal.4th 466, 485.) “It is not uncommon 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 then refuse to change his or her mind despite the persuasive powers of the remaining jurors.” (People v. Bowers, supra, 87 Cal.App.4th at p. 734.)
With those precepts in mind, what sort of conduct will demonstrate, to a demonstrable reality, that a juror has failed to deliberate? In People v. Thomas (1994) 26 Cal.App.4th 1328, the court discharged a juror who “did not answer the questions posed to him by the other jurors, did not sit at the table with the other jurors during deliberations, acted as if he had already made up his mind before hearing the whole case, and did not look at the two victims in the courtroom.” (Id. at p. 1333.) Similarly, a juror fails to deliberate by declaring at the outset of deliberations that he has reached a conclusion regarding the verdict, that there is nothing further to discuss, refuses to get involved in deliberations with the other jurors and sits in a corner reading a book. (People v. Leonard (2007) 40 Cal.4th 1370, 1410-1411.)
The juror committed further misconduct by taking home, secreted in his socks, notes he made during the trial. (People v. Thomas, supra, 26 Cal.App.4th at p. 1333.)
Though the California Supreme Court found, in Leonard, that the juror committed misconduct, it also determined that any error in the proceedings was harmless since the juror in question was convinced the defendant was guilty and the other jurors ultimately reached the same conclusion. (People v. Leonard, supra, 40 Cal.4th at pp. 1411-1412.)
Based on this record we are not satisfied that Juror No. 3’s failure to deliberate was established to a “demonstrable reality.” On the contrary, the record contains a fair amount of evidence showing that Juror No. 3 did, at least to some extent, deliberate and participate in the other jurors’ discussions. For example, Juror No. 4 testified that Juror No. 3 took part in the discussions and expressed his willingness to listen to the other jurors, though with the caveat that his opinion would not be changed. Juror No. 5 said it was within the first hour of deliberating that Juror No. 3 indicated that his opinion of the case could not be changed by anything the other jurors could say. However, none of the jurors said that Juror No. 3 failed to pay attention to the evidence during the trial, fell asleep, or physically separated himself from the other jurors while in the jury room.
In response to the court’s questioning, Juror No. 3 stated that he “was listening really well[, but]... didn’t believe the witnesses beyond a reasonable doubt.” He also stated that, during deliberations, he invited the other jurors to “discuss anything they wanted to discuss with me.” Juror No. 3 said he listened to the other jurors’ discussions of the case, though he did not attempt to convince them of his viewpoint, because “they already have their viewpoint.” When asked by an unidentified juror what it would take to change his mind, Juror No. 3 did not reject the question out of hand, but instead challenged the juror to try and convince him that the witnesses were credible. Though the juror was ultimately not successful in doing so, the fact remains that Juror No. 3 gave this juror the opportunity to change his mind, and thus it cannot be said that Juror No. 3 failed to deliberate.
Here, the entire case rested on the credibility of the prosecution’s witnesses, particularly that of the victims, Marshall, Daniel and Jacob. There was no physical evidence, such as medical examinations or DNA, or other eyewitnesses to the events, to corroborate their story. Juror No. 3 decided, either at the close of trial or soon after entering the jury room to begin deliberations, that he did not believe any of the People’s witnesses and that there was nothing any of the jurors could say or do to convince him of their credibility. The law is clear that this was not misconduct, nor was it a “failure to deliberate.”
A trial court’s error requires reversal only if it is reasonably probable that a more favorable result would have been obtained in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Since Juror No. 3 was apparently the lone holdout juror who believed that Rivers was not guilty, it is reasonably probable that a mistrial would have been declared had he remained on the jury. A mistrial is obviously a more favorable result than a conviction. Discharging Juror No. 3 was prejudicial error and, therefore, the judgment must be reversed. (See People v. Cleveland, supra, 25 Cal.4th at pp. 485-486.)
B. Sufficiency of the evidence claims
Though we have already determined that the judgment in this case must be reversed due to the discharge of Juror No. 3, we nonetheless address Rivers’ claims concerning the sufficiency of evidence because the resolution of those claims will determine whether the counts may be retried. (Burks v. United States (1978) 437 U.S. 1, 11 [double jeopardy clause prevents retrial after reversal due to insufficiency of evidence]; People v. Trevino (1985) 39 Cal.3d 667, 694, disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1219-1222.)
1. Standard of review
In assessing a sufficiency-of-the-evidence argument, the test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The court must view the evidence in light of the whole record, drawing all inferences in favor of the judgment and must presume the existence of every fact in support of the judgment that could reasonably be deduced from the evidence. To uphold a conviction, the record must contain evidence that is reasonable, credible, and of solid value such that any rational trier of fact could have been persuaded of the defendant’s guilt. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.)
2. Counts 26 through 30
Rivers argues that there was insufficient evidence of “force” or “duress” to sustain the convictions for the two counts of aggravated sodomy (§ 286, subd. (c)(2), counts 26-27) and the three counts of aggravated oral copulation (§ 288a, subd. (c)(2), counts 28-30) against Marshall. We agree.
Section 286, subdivision (c)(2) provides in relevant part: “Any person who commits an act of sodomy when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.” Section 288a, subdivision (c)(2) substitutes the words “oral copulation” for “sodomy,” but is otherwise identical to section 286, subdivision (c)(2).
In the context of a prosecution under sections 286, subdivision (c)(2) and 288a, subdivision (c)(2), “force” means that the defendant accomplished the act of sodomy or oral copulation by the use of force sufficient to overcome the victim’s will. (People v. Guido (2005) 125 Cal.App.4th 566, 574-576.) The salient question is “whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.” (People v. Griffin (2004) 33 Cal.4th 1015, 1027.)
People v. Pitmon (1985) 170 Cal.App.3d 38 defined “duress,” as used in the context of sex offenses against minors, as “a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” (Id. at p. 50.) This definition of “duress” was subsequently adopted by the California Supreme Court in People v. Leal (2004) 33 Cal.4th 999, 1004 (Leal).
In People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), this court found insufficient evidence to establish duress. In Espinoza, the defendant, who was the victim’s father, came to the victim’s bedroom, sat on the bed, pulled her pants down, rubbed her breasts and vagina, and attempted to have intercourse. It was uncomfortable, and the victim was frightened and scared. However, she did not resist, nor did she and the defendant speak to each other. (Id. at pp. 1292-1293.)
In Espinoza, we reasoned that duress could not be based solely on the fact that the defendant was the victim’s father, he was bigger, her intelligence was limited, and she was afraid. “What is missing here is the ‘ “direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” ’ [Citation.] Duress cannot be established unless there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat...’ [Citation.] No evidence was adduced that defendant’s lewd act and attempt at intercourse were accompanied by any ‘direct or implied threat’ of any kind. While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation.” (Espinoza, supra, 95 Cal.App.4th at p. 1321.) In sum, there is sufficient evidence of duress if the totality of the circumstances supports an inference that the victim’s participation was coerced in a way that was more threatening than mere psychological pressure, i.e., enticement, urging, or insistence. (See Ibid.)
In this case, there is simply not sufficient evidence to support a finding that Rivers sodomized or orally copulated Marshall through either “force” or “duress.” In describing the times that Rivers orally copulated him, Marshall testified only that he was guided to the couch by Rivers before the copulation occurred. In doing so, Rivers merely placed his hand on Marshall’s forearm, without grabbing or otherwise holding Marshall. Though Rivers spread Marshall’s legs, that act facilitated the oral copulation, but did not overcome Marshall’s will to thwart or resist the molestation.
Similarly with respect to the alleged sodomy, Marshall testified that Rivers guided him into position, not that he was forced into position or restrained in any way. Rivers did push on Marshall’s back to bend him over, but again that act was a means of facilitating the sodomy rather than an attempt to overcome Marshall’s will to resist.
Marshall testified he felt “bribed” by Rivers’ gifts and by being paid for the data entry work he did for Rivers, but bribery is neither force nor duress. He also testified he felt intimidated because Rivers was physically larger, but a mere difference in size is not force, and without some direct or implied threat of force or violence, it is not duress either.
Furthermore, Marshall consistently refused when Rivers asked Marshall to reciprocate and perform oral sex on him. Rivers never tried to force him to do so, nor did he threaten Marshall in any way in response to Marshall’s refusal. Although Marshall did object the second and third times that Rivers attempted to sodomize him, Rivers had already ejaculated by the time Marshall objected during the second event and stopped when Marshall said “No” on the third occasion.
In addition, Marshall was 15 years old at the time of the molestation. He was not a small child who, as a general rule, would be more prone to submit when an adult exerts any sort of authority, whether physical or psychological, over him or her. (See, e.g., People v. Pitmon, supra, 170 Cal.App.3d at p. 51 [eight-year-old victim more susceptible to intimidation as he is more likely to view adult as authority figure].) Similarly, Marshall was not related to Rivers, though Rivers was a family friend.
Again, the only reasons Marshall could offer as to why he submitted to these acts and why he continually returned to Rivers’ apartment, knowing they would recur, were that he felt intimidated by Rivers’ size and that Rivers was bribing him with money and gifts. As there was no evidence that Rivers ever took advantage of his size by using or threatening to use force, all that remains are the implied threats that Rivers would “fire” Marshall, thus cutting off his salary, and stop giving him presents. This is not duress.
Consequently, there is insufficient evidence to support the convictions on counts 26 through 30.
3. Counts 1 through 16
Rivers also argues that there was insufficient evidence of “force” or “duress” to sustain the convictions for five counts of aggravated oral copulation (§ 288a, subd. (c)(2), counts 1, 13-16), one count of aggravated sodomy (§ 286, subd. (c)(2), count 2) and 10 counts of aggravated lewd and lascivious conduct (§ 288, subd. (b)(1), counts 3-12) against Jacob.
Section 288, subdivision (b)(1) provides, in pertinent part, that “[a]ny person who commits [a lewd and lascivious act on a child under 14 years of age] by use of force, violence, duress, menace, or fear of immediate and unlawful injury on the victim or another person, is guilty of a felony.”
a. Aggravated oral copulation and sodomy
As with Marshall, there is insufficient evidence of either force or duress to support the convictions for aggravated oral copulation and aggravated sodomy against Jacob. Before orally copulating Jacob, Rivers would remove Jacob’s clothes, position Jacob on the couch and spread Jacob’s legs. During the act, Rivers would have one hand on Jacob’s penis and the other on Jacob’s chest, but not holding him down. Rivers did not use or threaten violence in any way. In fact, the first time Rivers attempted to copulate Jacob, Rivers stopped when Jacob pushed Rivers’ hands away and told him to stop.
Similarly, when Rivers sodomized Jacob, he did not use force or duress to do so. Jacob was asleep in the same bed as Rivers and awoke to feel Rivers removing his underwear, then he felt Rivers’ penis rubbing against his rectum. After a few minutes of this, Rivers penetrated him. At the time, Rivers had his arm around Jacob’s chest or stomach, but Jacob did not state that Rivers was holding him tightly or preventing him from moving away. Jacob told Rivers to stop, but Rivers kept going for a little bit before stopping.
The only reasons Jacob could offer as to why he submitted and why he continually returned to Rivers’ apartment, knowing these acts would recur, were that he felt intimidated by Rivers’ size, Rivers was telling him it was okay to engage in these acts, and Rivers was bribing him with gifts and, in Jacob’s case, drugs. Again, since there was no evidence that Rivers ever took advantage of his size by using or threatening to use force, the only remaining evidence of duress is Rivers’ telling Jacob they were doing nothing wrong and the implied threat that Rivers would no longer give Jacob presents or drugs. This is not enough. Jacob, like Marshall, was a teenager at the timeand, thus, not as vulnerable as a child would have been to an adult’s exercise of authority, whether implicit or explicit. Also, Rivers’ justifications for the molestation; e.g., saying, among other things, that his own father had done the same things to Rivers when he was a boy; may have been confusing to Jacob, but they did not directly or impliedly threaten force, violence, danger, hardship or retribution.
We recognize that Jacob was only 13 and 14 when these events took place, and was perhaps slightly more susceptible to intimidation by an adult than his older brother. However, none of the victims’ testimony revealed any hint that they found Rivers intimidating in any sense other than his relative size advantage. To the contrary, they all described Rivers as a trusted friend who took them on enjoyable outings and bought them presents.
Consequently, there is insufficient evidence to support the convictions on the five counts of aggravated oral copulation (§ 288a, subd. (c)(2), counts 1, 13-16) and the one count of aggravated sodomy (§ 286, subd. (c)(2), count 2) against Jacob.
b. Aggravated lewd and lascivious conduct
In the context of a prosecution for aggravated lewd and lascivious conduct under section 288, subdivision (b), “force” has a different definition than that employed in connection with prosecuting aggravated oral copulation and aggravated sodomy. In a case involving lewd and lascivious acts, there must be a showing of “ ‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
The definition of duress is the same regardless of the underlying conduct, i.e., oral copulation, sodomy or lewd and lascivious conduct. (Leal, supra, 33 Cal.4th at pp. 1004, 1009.)
In counts 3 through 12, Rivers was charged with aggravated lewd and lascivious conduct with respect to Jacob. Counts 3 and 4 involved the same conduct that was charged in counts 1 and 2, namely aggravated oral copulation and aggravated sodomy. The remaining eight counts involved other unspecified instances of oral copulation with Jacob, but in each instance, the conduct was the same. Rivers would take off Jacob’s clothes, sit him on the couch, spread his legs, masturbate him and then orally copulate him. None of these acts constituted “ ‘physical force substantially different from or substantially greater than that necessary’ ” to orally copulate Jacob. (People v. Cochran, supra, 103 Cal.App.4th at p. 13.)
Finally, the conduct described fails to show any implied or express threat of force, violence, danger, hardship or retribution which would support a finding of duress. Jacob submitted to these acts because he was smaller than Rivers, Rivers told him it was okay, and Rivers gave him presents and drugs. As discussed in the preceding section addressing the charges of aggravated oral copulation and sodomy, this does not constitute duress.
Consequently, there is insufficient evidence to support the convictions on the 10 counts of aggravated lewd and lascivious conduct (§ 288, subd. (b)(1), counts 3-12) against Jacob.
III. Disposition
The judgment is reversed and the matter is remanded for retrial. Retrial on counts 3 through 12 is limited to the lesser included offense of lewd or lascivious act on a child in violation of section 288, subdivision (a).
WE CONCUR: Rushing, P.J., Elia, J.