Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD195605, John L. Davidson, Judge.
O'ROURKE, J.
A jury convicted Enrique Roman of second degree murder (Pen. Code, § 187, subd. (a); count one); and assault resulting in the death of a child under the age of eight (Pen. Code, § 273ab; count two.) The trial court sentenced him to 25 years to life in prison on count two and imposed but stayed the count one sentence under section 654. Roman moved for a new trial under section 1181 based on alleged prosecutorial misconduct. The trial court denied the motion.
All further statutory references are to the Penal Code unless otherwise stated.
Roman contends the trial court erroneously: (1) denied his motion for mistrial brought on the grounds that his constitutional right to an impartial jury was violated because the jury was not drawn from a fair cross-section of the community; (2) excluded evidence relating to his defense; (3) admitted evidence regarding his prior acts; (4) failed to instruct sua sponte on the lesser included offenses of aggravated assault and simple assault; (5) failed to properly instruct regarding reasonable doubt; (6) discharged a juror during deliberations; (7) imposed on him a sentence that violated the prohibition regarding cruel and unusual punishment. We conclude the trial court prejudicially erred in discharging a juror during deliberations and substituting an alternate juror. We reverse.
FACTUAL BACKGROUND
Given the basis for reversal, it is not necessary for us to recite the facts of the underlying crime. We set forth the facts regarding the discharge of a juror. On the fourth full day of jury deliberations, the foreperson, Juror No. 10, sent the court a note stating, "[W]e are deadlocked and holding. We can't seem to move forward. Please advise." The court interviewed the foreperson and asked, "[H]as there been a lack of any further discussion about the issues upon which you are stalled?" The foreperson stated, "There is discussion. There is continual discussion, but there is no forward movement." The foreperson stated that further instruction regarding how to weigh testimony might assist the jury. The court stated it would instruct the jurors the next day, and recessed for the day.
The next day, the court received a note from Juror No. 5 stating, "[C]ould you elaborate on and could you please discuss responsibilities of jurors to reach a decision and what is meant by 'evidence need not eliminate all possible doubt[?]' " The court instructed the jury on those legal issues by rereading portions of CALCRIM Nos. 200, 220, 222, 226, 301, 302, 318, 330, 332, 333, and 3550. Later that morning the foreperson sent the court another note stating the jury was deadlocked. The foreperson told the court and counsel that the jury had taken one vote and was divided eleven-to-one on unspecified counts. The court individually asked the jurors if they were hopelessly deadlocked and if further deliberation would help them reach a verdict. Eleven jurors expressed doubt that they could reach a verdict, but one juror stated, "I would say there is a lot of frustration, but there is still a fairly active discussion going on, and I don't know if it will be help. We may still be deadlocked." The judge gave the jurors the afternoon off, because they indicated it might help their deliberations.
On the sixth full day of deliberations, Juror No. 9 sent the court a note stating, "[W]e think you should know that many of us have observed [Juror No. 1] appear to be sleeping during testimony, and this may be contributing to his inability to come to a rational conclusion regarding the evidence." The foreperson also sent the court a note stating, "Juror [No.] 1 seems unable to evaluate the evidence [with] an open mind."
The trial court took the opportunity to inform counsel of the following incident: "[L]et me just make a record on this. Actually, my bailiff brought it to my attention earlier with respect to not only [Juror No. 1], but a couple other jurors as well, and I at one point during the trial reminded everybody if they needed a break to let me know so that they could stretch. That was my way of handling the issue . . . during the actual trial itself, and I was keeping my eye on watching [sic] the jurors." The trial court stated the bailiff had sent him a note that Juror No. 1 was sleeping on two different occasions. The court continued, "That was brought to my attention, I looked over at [Juror No. 1], and his eyes were down. And then he looked up, and we made eye contact with each other, and I kept eye contact with him after that point to make sure that he would remain attentive. So I didn't take any further action other than to remind the jurors at that time."
The court placed this incident in context stating, "I really don't think that's a part of the court's inquiry at this point. My only question is whether or not [Juror No. 1] is keeping a — is deliberating with the other jurors in accordance with the court's instructions." The trial court interviewed five jurors, and allowed counsel to question the jurors.
The court initially asked Juror No. 9 whether Juror No. 1 was refusing to deliberate and had refused to keep an open mind about the evidence in the case, and Juror No. 9 answered both questions in the affirmative. On further questioning, however, she stated the following regarding Juror No. 1: "[H]e has invented a theory that is not based on evidence, and he refuses to consider evidence that would contradict that." "He listens but he doesn't when it is pointed to him that evidence contradicts his theory. He just keeps repeating the story." "He does discuss his point of view, but in my opinion he won't listen to logic where he is contradicted." Finally, Juror No. 9 agreed that the jurors had deliberated; discussions were ongoing, and the jurors had been courteous to each other, and added, "We are still trying."
Juror No. 10 stated, "[Juror No. 1] when evaluating evidence, not specifically but in generally [sic] and discussing evidence, [he] did not appear to be able to take an open look at the evidence, as measured by his own comments and monologues in the jury room." This juror also agreed that Juror No. 1 was willing to listen to the discussion of the other jurors, and stated, "There has been nonstop dialogue . . . for days now I would say that there has been an intense effort for mutual understanding for both sides to understand and make sense out of what's happening, and we have not been able to do that." The prosecutor asked whether Juror No. 1 was "going through motions when he was listening." Juror No. 10 answered, "There is a difference to me between listening and comprehending, and there was active — appearing to be active listening, but I am not sure comprehension was along with it, in my opinion."
The court initially asked Juror No. 2 "whether or not in your opinion there have been any other jurors that have refused to evaluate or keep an open mind with respect to the deliberating in this case." Juror No. 2 identified Juror No. 1 as such a juror. Defense counsel asked this juror whether Juror No. 1 "tried to tell the others why he feels the way he does." Juror No. 2 replied, "I believe so." Defense counsel also asked if the majority tried to tell Juror no. 1 the basis of their opinions. Juror No. 2 replied, "We did that earlier in this process, yes, not necessarily just him but each other. He was not the only one with a difference." Juror No. 2 added, "I am not sure [Juror No. 1] was listening to what other people were saying, but he was giving evidence that we don't have in front of us, that wasn't presented here, and so far unwilling to pay attention to the evidence that was presented here."
When the court asked Juror No. 3 whether there had been juror misconduct, the response was, "I do not believe that there was any misconduct. I do believe that there has been a juror that has not been open-minded on the case." Juror No. 3 clarified, "[Juror No. 1] has participated, but it has not been about specifically about [sic] the evidence that has been presented in the case. It has been the juror's own feelings versus what the facts show," and added, "[Juror No. 1] listens, but I don't feel that he is being open minded to anything that has been brought up by anybody or the facts that were presented. I think he has made up his mind and no matter what the facts are. It is irrational thinking in my mind." The prosecutor asked whether Juror No. 1 "said anything that was speculation in terms of facts, in other words, facts that were not presented in front of the jury." Juror No. 3 replied, "He references things that were brought up, but he doesn't take into consideration other facts that would outweigh what he has brought up."
For his part, Juror No. 1 stated, "I explained to them, and just like everybody else talked about, I said yes, I said I would — I am talking to everybody. I want to keep talking. And we spoke. We had different issues that were weighted heavier with others. Everybody had the issue that was the heaviest to them, okay, and those things did not really change for the most part." He said, "We continue to talk. We always talked. And I have never tried — never retreated or never tried not to hear what was said or to give an explanation to any question or comments."
The trial court asked Juror No. 1 whether he had slept during the trial. He responded, "Sir, I was drowsy for a short time, but I was not asleep. I, in listening to certain testimony, I focus on what was being said. And in focusing on what was being said, I wanted to be sure to hear what was being said. And if somebody misunderstood that as being sleeping, that was not the case."
The trial court did not interview any other juror. The court stated, "My problem with Juror No. 1 is that [his] explanation about whether or not he was sleeping or not [sic] is without credibility. [¶] . . . That's why I asked him about that, to find out about his credibility. And his credibility on that issue was zilch, was nothing. And so I can't just take his statements at face value and accept them, because I don't. And I don't think that, just hearing from him and listening to him, I don't find his information to be credible at all." The trial court ruled, "with respect to Juror No. 1, I am sorry. I do not believe him. And I think that there is an abundance of evidence based on the jurors that I have heard right now to find good cause under . . . section 1089 to remove [him] and order that one of the alternatives by random selection be substituted in, and I am so finding." The new jury convicted Roman.
DISCUSSION
We rely on the following legal principles in evaluating Roman's claim the trial court erred in discharging a juror during deliberations: Section 1089 states, "If at any time, whether before or after final submission of the case to the jury, a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate."
Often the "basis for an allegation that a juror refuses or is unable to deliberate, initially will be unclear." (People v. Cleveland (2001) 25 Cal.4th 466, 483-484 (Cleveland).) "[P]roper grounds for removing a deliberating juror include refusal to deliberate. A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. 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, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views." (Cleveland, at p. 485.)
The applicable standard of review is the "demonstrable reality test," which "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 . . . the reviewing court does not reweigh the evidence . . . 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 the record of reasons the court provides. . . . In taking the serious step of removing a deliberating juror the court must be mindful of its duty to provide a record that supports its decision by a demonstrable reality. [¶] The evidence . . . may be in conflict. . . . In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053 (Barnwell).) A trial court's error requires reversal only if it "is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) If, as here, a lone holdout juror — who steadfastly deliberates and sticks to his belief regarding the defendant's innocence — remains on the jury panel, it is reasonably probable the case will end in a mistrial, which is a more favorable result for the defendant Dhan conviction. (People v. Bowers (2001) 87 Cal.App.4th 722, 735-736 (Bowers).)
On the record before us, Juror Nos. 1, 2, 9 and 10 did not establish a "demonstrable reality" that Juror No. 1 had failed to deliberate. Rather, these jurors reported that Juror No. 1 listened to their views and participated in deliberations, but in the end he remained firm and fixed in his position. These jurors also opined that Juror No. 1 did not analyze the evidence logically, and his interpretation conflicted with theirs. These latter statements amount to nothing more than claims that Juror No. 1 did not deliberate well or that he relied on faulty logic. Neither is a basis to discharge a juror. (Cleveland, supra, 25 Cal.4th at p. 485.) Accordingly, we conclude the trial court abused its discretion in discharging Juror No. 1.
The trial court at first acknowledged that the issue to resolve was not whether Juror No. 1 had slept during trial, but whether he had failed to deliberate. Nevertheless, the trial court discharged Juror No. 1 because it found he did not respond credibly to the court's questions on the issue of whether he had slept during trial. We infer the trial court did not believe Juror No. 1's claim he had deliberated.
We note that, during trial — when the court became aware Juror No. 1 possibly was sleeping — the court monitored him and was satisfied that he was not sleeping during the remainder of the trial. Furthermore, the trial court reiterated it did not discharge Juror No. 1 because he slept. The court stated, "It is not whether he actually was or was not sleeping. I could care . . . less. It is his credibility with respect to that particular issue when I asked him about that during open court. And his demonstration to me to try to explain it away led me to believe that he was being less than honest with me, and that's why I found him to not be credible. [¶] It has nothing to do with whether or not he was actually sleeping or not sleeping during the trial."
Even if we deferred to the court's credibility determination and discounted Juror No. 1's statements that he deliberated, we still would not find a basis for discharging Juror no. 1, because the totality of statements by Juror Nos. 2, 3, 9 and 10 did not establish that Juror No. 1 failed to participate in the deliberations. Here, the requisite prejudice has been shown under Bowers, supra, 87 Cal.App.4th at pp. 735-736. We note that the California Supreme Court has stated, "It is difficult enough for a trial court to determine whether a juror actually is refusing to deliberate or instead simply disagrees with the majority view. [Citations.] Drawing this distinction may be even more difficult for jurors who, confident of their own good faith and understanding of the evidence and the court's instructions on the law, mistakenly may believe that those individuals who steadfastly disagree with them are refusing to deliberate or are intentionally disregarding the law. Jurors, of course, do not always know what constitutes misconduct." (People v. Engelman (2002) 28 Cal.4th 436, 445.)
In light of our conclusion, all other issues raised on appeal are moot.
DISPOSITION
The judgment is reversed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.