Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F06926.
NICHOLSON , J.
Following a jury trial, defendant Shante Renee Wesley was convicted of vandalism causing more than $400 in damages, a felony (Pen. Code, § 594, subds. (a), (b)(1)). The trial court suspended imposition of sentence and placed defendant on five years’ formal probation.
Subsequent undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court violated her due process and jury trial rights by discharging a juror without good cause. We affirm.
BACKGROUND
We dispense with recitation of the facts of defendant’s crimes as they are unnecessary to this appeal.
During jury deliberations, the jury sent the following question to the trial court: “Is a juror allowed to bring any outside notes or questions inside the deliberations room?”
The trial court called the presiding juror, Juror No. 9, into the courtroom. Juror No. 9 said another juror took the notes out of the deliberation room and brought them back the next day. It was not the jury notebook, but the juror’s own notes on his own notepad. Juror No. 9 said the juror was “called on it” and explained “they were notes from the prior day’s deliberations.” Juror No. 9 did not have any information that the juror was getting any information from outside sources such as the Internet.
The trial court determined Juror No. 7 took the notes and then called him into the courtroom to find out what was happening. Juror No. 7 admitted removing notes from the jury room and denied bringing in outside evidence. Juror No. 7 then told the trial court:
“No, no research evidence. I even avoided talking to people in the hallway that are not on the jury.
“When I see people or witnesses that I think might be witnesses in this trial, I make sure I don’t make eye contact and don’t say anything or smile.
“I don’t think -- I just want to remain clean and not have any suspicion directed toward me for doing anything that’s wrong or illegal.
“But, honestly, when I got done last night with deliberations, I had my backpack here. And it’s my same backpack I take to work everyday when I work. I take it sometimes on my vacation with me. I’m just so used to taking my clipboard or notepad that I always have at work, I shoved it in my backpack, and I go home.
“I didn’t even think, I -- believe me, if I even thought of it -- I thought, well, obviously, I’m going to leave my green notepad. I didn’t even think there were notes on there that I was taking them home, didn’t do it for any underhanded reason.”
“And then last night, as I was trying to go to sleep, I thought about more questions that I wanted to bring up to the other jurors.
“And I thought well, I’ll jot them down tomorrow, which ones -- again, I didn’t know it was -- I really don’t consider that illegal, not questions that I want to ask.
“Because when you get in the jury room, our time is so limited, I knew I might not remember all of my questions, just like I never had time to re-read the instructions, nor did I have time to go over the exhibits that we had.
“I like to read. I like to go over things again and again. That’s the way I study or make it through school is by studying hard.
“I really tried to be a hard worker in this case. I made a lot of notes. And so I made notes right out here while we are waiting to get in today.
“I’m sure people saw me. I didn’t think anything of it. I wrote out my questions that I wanted to go over today.
“And then right before I’m going to take recess, the foreman said some people have observed -- I don’t know if it was plural, or if they were just talking about me. We’ll discuss it after we get back in.
“Then I went oh, I didn’t -- when we came back, I know people were saying well, don’t you remember the jury instructions we had?
“I really don’t, believe me. No one saw any of my notes. I was in possession of my backpack the entire time.
“My wife would never have looked in the backpack last night. She didn’t know whether there were any notes in there.
“I don’t think I any way compromised. And I certainly didn’t do anything I thought might be untoward or illegal.”
The trial court determined Juror No. 7 took home a different notebook from the standard notebook issued to jurors. Juror No. 7 affirmed he took notes of deliberations and put them in his own notebook, which he took home. Asked if he knew the notebook was in his backpack, Juror No. 7 said: “Absolutely not.” He did not realize he had the notebook until he “wanted to write down the questions to relay this morning in the deliberation room.” Instead of writing the questions down while he was in the car, Juror No. 7 “got here early,” and “did it right here” so “if there is something wrong, everyone will see me doing it.”
Juror No. 7 told the trial court he did not take the notes home to study them. He had no reason to look at the notes because “[m]y questions were all in my head.” At the end of the examination, Juror No. 7 reiterated that he had no idea he was violating a rule, but did nothing until he got to the courthouse because there might be a rule against it.
DISCUSSION
The trial court concluded Juror No. 7 violated the instructions by taking the notes home. Finding his inconsistent answers raised questions about his credibility, the trial court dismissed Juror No. 7 and replaced him with an alternate.
At both the beginning and the end of the trial, the trial court instructed the jury with CALCRIM No. 202, which states, in pertinent part: “Please do not remove your notes from the jury room.”
Defendant contends the trial court violated her Sixth Amendment and Fourteenth Amendment rights by discharging Juror No. 7 without good cause. To the contrary, good cause supported the discharge.
A defendant has a constitutional right to a unanimous verdict by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; see also People v. Engelman (2002) 28 Cal.4th 436, 442.) Consistent with this constitutional right, a trial court may discharge a sworn in juror under some circumstances. Section 1089 provides in relevant 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 or her duty..., the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”
“Removing a juror is, of course, a serious matter, implicating the constitutional protections defendant invokes. While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, fn. omitted (Barnwell).) “When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required. [Citations.]” (Id. at p. 1051, original italics.) “A trial court facilitates review when it expressly sets out its analysis of the evidence, why it reposed greater weight on some part of it and less on another, and the basis of its ultimate conclusion that a juror was failing to follow the oath.” (Id. at p. 1053.)
A trial court’s decision to remove a juror is reviewed under an abuse of discretion standard and will be upheld only if that juror’s disqualification appears on the record as a demonstrable reality. (People v. Wilson (2008) 43 Cal.4th 1, 26.)
“The demonstrable reality test entails a more comprehensive and less deferential review [than the substantial evidence test]. [The demonstrable reality test] 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.” (Barnwell, supra, 41 Cal.4th at pp. 1052-1053, original italics.) We consider the evidence on which the trial court relied, and the trial court’s express statement of reasons, affording deference to the trial court’s credibility determinations. (Id. at p. 1053.)
Defendant argues the juror’s misconduct, accidentally taking home his notes on deliberations, was not serious and willful. Defendant points out Juror No. 7 did not show the notes to other jurors, and did not introduce extrinsic materials into deliberations. Also, defendant asserts it is not misconduct “for a juror to make notes reflecting his or her own thought process outside of deliberations, or to bring such notes into deliberations.” (See Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 261, 264 [not misconduct for juror to prepare a summary of her thoughts at home, and bring it into the jury room so long as “such notations are the product of the juror’s own thought processes and the evidence, rather than extraneous influences”].)
The trial court did not excuse Juror No. 7 simply because he took his notebook home and wrote in it. More important to the trial court’s decision was the juror’s inconsistent statements, which raised questions about his credibility.
Defendant asserts there is no evidence supporting the trial court’s finding that Juror No. 7 was not credible. Not so. The trial court correctly pointed out inconsistencies in Juror No. 7’s statements. Juror No. 9 told the court that Juror No. 7 admitted writing notes at night when he brought them home. This contradicts Juror No. 7’s contentions that he did not write any notes at home, and waited until he got to court to write his questions that morning.
This is not an inadvertent or incidental contradiction. A finding that Juror No. 7 wrote notes at home calls into question his statements that he took them home inadvertently. Since the juror was already contradicted regarding what he did with the notes at home, the trial court could reasonably conclude that his other explanations were not credible.
We defer to the trial court’s finding on credibility. (See People v. Boyer (2006) 38 Cal.4th 412, 444.) Based on the trial court’s doubts with the juror’s credibility, there was a demonstrable reality supporting the trial court’s finding of good cause to exclude Juror No. 7.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P. J., HOCH , J.