Filed 6/15/20

                      CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        FIRST APPELLATE DISTRICT

                                DIVISION FIVE


 THE PEOPLE,
         Plaintiff and Respondent,             A155720
 v.
 BRIAN ZACHARY JONES,                          (Alameda County
         Defendant and Appellant.              Super. Ct. No. H58702)


       This case requires us to review a trial court’s decision to remove a
potential hold-out juror in a murder case. Following a fatal alcohol-related
car crash in May 2015, a jury convicted Brian Zachary Jones of two counts of
second degree murder (Pen. Code, § 187, subd. (a)) and other crimes. He
appeals, asserting that the trial court erred in discharging a juror who felt
coerced or bullied by a second juror. The second juror had disclosed Jones’s
criminal history, which was not part of the record at trial, and was also
discharged. We agree with Jones that the record does not support
discharging the first juror, and we reverse.
                                 BACKGROUND
                                       A.
       The People charged Jones with four felony counts: murder (Pen. Code, §
187, subd. (a); counts one and two); driving under the influence of alcohol and
causing injury (Veh. Code, § 23153, subd. (a); count three); and driving with a
blood alcohol level above .08 percent (Veh. Code, § 23153, subd. (b); count

                                        1
four). For counts three and four, Jones was also charged with an
enhancement for driving at least 30 miles per hour over the speed limit in
violation of the prohibition on reckless driving (Veh. Code, § 23103).
      A jury found Jones guilty on all counts in November 2017. In October
2018, the trial court sentenced him to consecutive indeterminate terms of 15
years to life in prison for counts one and two and concurrent two-year prison
terms for counts three and four, for a total sentence of 30 years to life.
                                        B.
      At the outset of trial, Jones filed a motion in limine to exclude evidence
of his 2003 misdemeanor conviction for alcohol-related reckless driving.
Jones argued there was a significant risk that the jury would use the
evidence improperly to conclude that he had a propensity for lawlessness or
that the fact that he had a “reckless” driving conviction meant he had a
reckless disregard for life in connection with the intent element of the murder
charges. In response, the People agreed not to rely on the prior conviction in
its case in chief.
                                        C.
      At trial, the facts were largely undisputed. The evidence showed that a
few months before the crash, Jones had taken a two-day driving course on
how to safely operate his new Corvette. The day of the crash, Jones attended
the Livermore Wine Festival with a friend and had food and beer. Jones
later admitted that he drank five 4-ounce cups of beer at the festival; he also
later ordered a 22-ounce beer at a restaurant. There was no dispute that
Jones was the driver or that his blood alcohol level was above .08 percent at
the time of the crash.
      Just before the crash, at around 6:50 p.m., Jones drove his Corvette
down a street in Livermore with a posted speed limit of 35 miles per hour.


                                        2
Jones stopped at a red light. When the light turned green, Jones accelerated
the Corvette to a high rate of speed.
      At the time of the accident, the Corvette was travelling over 90 miles
per hour. The Corvette jumped the curb at a bend in the road near the home
of Rosa and Juan M., who were hosting a family party. After hitting a utility
box, Jones’s Corvette struck and killed Rosa’s cousins, Esperanza R. and her
one-year-old daughter, Y.P. Two other children at the party were injured.
      The only dispute at trial concerned the murder charges. The defense
argued that the prosecution failed to prove the third and fourth elements of
second degree murder – that at the time the defendant acted, he knew that
his actions were dangerous to human life and that he deliberately acted with
a conscious disregard for life. The prosecution argued that Jones knew his
actions could kill someone but he did not care: after drinking all afternoon,
Jones drove 99 miles per hour in a residential area clearly marked with a
speed limit of 35 miles per hour. The prosecution argued that anyone should
know that Jones’s actions were dangerous, and his actions demonstrated a
conscious disregard for human life.
      The defense conceded that a reasonable person would have known that
Jones’s actions “would create a likely risk of death” and that Jones therefore
had committed gross negligence. But the defense asserted he was not guilty
of second degree murder because the prosecution had not shown that he
subjectively knew he was likely to kill someone and acted anyway. The
defense’s theory was that the special driving class for Corvette owners,
coupled with his level of intoxication at the time of the accident, made Jones
overconfident in his driving abilities, and he did not know he was likely to
kill anyone. Because the traffic light was green, Jones believed he had the




                                        3
right of way. Once he realized what was happening, he hit the brakes and
tried to get control of the car and steer away from the victims.
                                        D.
      The day after the jury began deliberating, Juror No. 10 left the jury
room during a break and informed the courtroom clerk that another juror
revealed in deliberations that Jones had a prior conviction for driving under
the influence of alcohol. The court ordered the jury not to resume
deliberations pending further inquiry. When the court questioned Juror No.
10 on the record, she reported: “Another juror made a comment that Mr.
Jones had had a prior DUI” and “indicated that she had seen that in the
newspaper. I was extremely upset.” The other juror made the revelation
after Juror No. 10 expressed she “was having problems” with the third and
fourth elements of the second degree murder charge. Juror No. 10 was
“somewhat coerced in how [she] felt.”
      Juror No. 10 also reported that, after the revelation, “everybody’s
mouth sort of fell open . . . .We had heard what she said but it was almost as
if you couldn’t believe what had been said.” She was “shocked,” and other
jurors had a similar reaction. Juror No. 10 explained that after the jurors
called for a break, “[t]he foreman, prior to us departing the room, had simply
stated: ‘Just strike that from the record.’ Well, I’m unable to do that, Your
Honor.” The court asked Juror No. 10, “were you shocked at the fact that
another juror even brought this information forward or were you shocked by
the information” itself? Juror No. 10 responded that she “felt it was said to
persuade me to agree with them on Item No. 3 for the murder charge.”
      The court then stated: “You did indicate that the information that you
received and the context within which you received it and kind of the
impression that you had as to why it was being brought up would make it


                                        4
very difficult for you to continue in your deliberations; is that fair?” Juror
No. 10 responded: “[y]es,” and explained that she was concerned with “the
way it was stated” because the statement about the prior conviction was
made with “attitude.”
      At no time did Juror No. 10 ask to be dismissed or state that she could
not continue deliberating. The court invited Juror No. 10 to wait in the
witness room, and she accepted.
      The court then questioned each of the other jurors, including the
individual who had referenced the prior conviction, whom the jury foreperson
identified as Juror No. 9. Like Juror No. 10, some of the remaining jurors
indicated that they were “surprised” or “taken aback.” The court asked each
of the jurors—other than Jurors Nos. 9 and 10—whether they would be able
to disregard the information about a prior conviction, and each responded
affirmatively.
      After questioning each juror, the court dismissed Juror No. 9 for
misconduct, concluding that she violated the court’s instructions to disregard
extraneous information.
      Over defense counsel’s objection, the court also dismissed Juror No. 10.
The court explained: “Juror No. 10 has expressed, I think in fairly clear
terms, an inability to continue deliberating based upon, not so much the
information but . . . in many ways the way in which it was presented to her.
She indicated that she felt that she was being bullied, that it was directed at
her and it was done not to just persuade her to go in one particular direction
but she use[d] the . . . term ‘bullying’ and indicated she would be unable to
participate in the process further. For that reason, the Court is inclined to
dismiss that juror.”




                                        5
      Jones moved for a mistrial. In addition to arguing that Juror No. 9’s
misconduct tainted the remaining jurors, Jones observed that Juror No. 10
was dismissed even though she “did absolutely nothing wrong.” “She
followed [the] Court’s instructions” and “deliberated with everyone else.”
Juror No. 10 “was voting for manslaughter,” “[b]ut because another juror
engaged in misconduct, . . . Juror No. 10 is out, and we no longer have a juror
who is voting for manslaughter.” The court denied the motion, concluding the
juror misconduct was not prejudicial because the remaining jurors, when
questioned by the court, “indicated in no uncertain terms that they would be
able to disregard [Jones’ prior conviction] and not take it into account.” With
respect to Juror No. 10, the court said that she had been so upset by the
perceived bullying by Juror No. 9 that she had left the jury room and was
unwilling or unable to continue deliberating.
      The court reinstructed the remaining jurors, substituted in two
alternate jurors, and directed the jury to begin deliberating anew. After
about four and one-half hours of deliberations, the jury returned unanimous
guilty verdicts on all charges.
                                  DISCUSSION
      Jones asserts that the record does not support the trial court’s
dismissal of Juror No. 10. We agree.
                                       A.

      A trial court may dismiss a juror if the court finds the juror is “unable
to perform his or her duty.” (Pen. Code, § 1089; People v. Armstrong (2016) 1
Cal.5th 432, 450 (Armstrong).) Dismissal may be appropriate, for example,
when a juror is emotionally unable to continue or expresses a fixed conclusion
at the beginning of deliberations and refuses to engage with other jurors.
(See People v. Cleveland (2001) 25 Cal.4th 466, 474, 485 (Cleveland).)

                                       6
      “Great caution is required when deciding to excuse a sitting juror.”
(People v. Allen and Johnson (2011) 53 Cal.4th 60, 71 (Allen and Johnson).)
If a juror’s willingness or ability to continue deliberating is unclear, the court
must inquire further before dismissing the juror. (Shanks v. Department of
Transportation (2017) 9 Cal.App.5th 543, 551-557 (Shanks).) The inquiry
must be sufficient to determine the facts that demonstrate a juror’s ability or
inability to deliberate (People v. Burgener (1986) 41 Cal.3d 505, 519,
overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753)
and may not assume the worst about a juror without giving her an
opportunity to explain herself. (People v. Compton (1971) 6 Cal.3d 55, 60
(Compton); Shanks, supra, 9 Cal.App.5th at p. 556.)
      When reviewing a dismissal, our Supreme Court has adopted a
heightened standard of review that protects the defendant’s fundamental
rights to due process and a fair trial. (Armstrong, supra, 1 Cal.5th at p. 450;
Cal. Const., art. I, § 16 [trial by jury is an “inviolate right”].) The juror’s
inability to perform his or her duty must appear in the record as a
“demonstrable reality.” (Armstrong, supra, 1 Cal.5th at p. 450.) Our
Supreme Court has emphasized that this test is “more comprehensive and
less deferential” than the substantial evidence test. (Id. at p. 451.) Under
both tests, the appellate court reviews the entire record and does not reweigh
the evidence. (Id. at pp. 450-451.) However, under the substantial evidence
test, the court reviews the record in the light most favorable to the judgment
and upholds it if there is credible evidence that could reasonably support the
trial court’s decision to remove a juror. (Id. at p. 450.) Under the
demonstrable reality test, by contrast, we must determine whether the trial
court actually did rely on evidence that supports removing the juror. (Id. at
p. 451.) It thus requires us to review the “ ‘record of reasons’ ” that the trial


                                          7
court provided, identify the evidence on which the court actually relied, and
determine whether the evidence manifestly supports the court’s reasons.
(Ibid.)
                                        B.
      Accordingly, we begin with the reasons that the trial court provided for
excusing Juror No. 10. In the court’s view, she expressed an “inability to
continue deliberating” and felt “bullied” when Juror No. 9 pointed to
extraneous information in an attempt to persuade her that the elements for
second degree murder were met.
      The evidence supporting this conclusion is limited. Juror No. 10 told
the court she was “extremely upset” by Juror No. 9’s disclosure of the prior
arrest and “felt somewhat coerced” because Juror No. 9 said it after Juror No.
10 had expressed reservations about one of the murder charges. The court
asked Juror No. 10 if it was “fair” to say that “it would be very difficult for
you to continue in your deliberations” because of Juror No 9’s actions and
“the impression that you had as to why it was being brought up.” Juror No.
10 replied, “Yes,” and added that Juror No. 9’s disclosure of the prior arrest
was stated “with attitude.”
      This does not meet the heightened standard. Juror No. 10 never
requested to be discharged, nor did she ever say she was unwilling or unable
to continue deliberating. (Cf. People v. Delamora (1996) 48 Cal.App.4th 1850,
1855-1856 [record did not support discharge of jurors who, among other
factors, never requested discharge or said they could not continue].) She had,
in fact, been deliberating without incident since the day before. The court
never asked her directly whether she could continue. Instead, the court
asked her if it would be “very difficult” for her to continue. At best, the
question is ambiguous, which is insufficient. (Allen and Johnson, supra, 53


                                        8
Cal.4th at p. 72 [dismissal was improper where juror’s statement suggesting
that he prejudged the case was “not entirely clear”].)
      Our Supreme Court’s decision in Compton, supra, 6 Cal.3d 55, is
instructive. Compton held that a juror’s out-of-court statement that “ ‘he
didn’t like to be on a case like this because it was hard to keep an open mind’
” was insufficient to justify the juror’s discharge without further inquiry. (Id.
at pp. 59-60.) The Court explained that the juror’s statement was
“equivocal”: he could have meant that he was incapable of remaining
impartial, or he could have meant “only that he found the facts of the case
distasteful and would be compelled to make a special effort to remain
objective, although he was capable of doing so.” (Ibid.)
      Similarly, here, the phrase “very difficult” is equivocal. Juror No. 10
could have meant she was incapable of continuing to deliberate, or she could
have meant she was capable of continuing to deliberate but it would be hard
to do so. As in Compton, Juror No. 10’s inability to continue as a juror did
not appear in the record as a demonstrable reality because “the ambiguity [in
the juror’s statement] was never resolved by proof, and the court was not
entitled to do so by presuming the worst.” (See Compton, supra, 6 Cal.3d. at
p. 60; see also People v. Bennett (2009) 45 Cal.4th 577, 623 [there was “no
evidence in the record to support the conclusion that the juror was unable to
perform his duty” where the juror expressed that he would have difficulty
verbally confirming his vote for the death penalty but ultimately stated
under questioning that “ ‘it’s difficult to do it, but I can do it’ ”].)
      Further inquiry also may have resolved Juror No. 10’s concerns about
the extrinsic material and about Juror No. 9. In People v. Goldberg (1985)
161 Cal.App.3d 170, for example, a juror became “extremely upset” and asked
to be excused after another juror improperly referred to a news article during


                                           9
deliberations. (Id. at p. 191.) She agreed to continue after the trial court
discussed the issue with her, commended her for reporting the misconduct,
and explained why the trial was not irredeemably tainted. (Id. at pp. 191-
192.) Here, a similar discussion may have reassured Juror No. 10,
particularly given the court’s decision to dismiss Juror No. 9, the alleged
bully.
         We do not suggest that the trial court must ask particular questions or
attempt to rehabilitate a juror when confronted with a concern about the
juror’s ability to deliberate. The court has leeway to “conduct ‘whatever
inquiry is reasonably necessary to determine’ whether” there are grounds for
dismissal. (Cleveland, supra, 25 Cal.4th at p. 484.) However, if the court
elects to dismiss a juror, the court’s inquiry must be sufficient to support the
dismissal. (See, e.g., Shanks, supra, 9 Cal.App.5th at p. 556 [“[I]t is the trial
court’s duty to make a sufficient inquiry before discharging a juror during
deliberations”].) And the court should take care to ensure the record reflects
both its reasoning and supporting evidence so that a reviewing court can “be
confident that the trial court's conclusion is manifestly supported by evidence
on which the court actually relied.” (Armstrong, supra, 1 Cal.5th at p. 451;
People v. Barber (2002) 102 Cal.App.4th 145, 151-152 [the court “may make “
‘whatever inquiry is reasonably necessary to determine’ ” if there is
misconduct [Citations.] But the court may not dismiss a juror unless it
appears as a ‘demonstrable reality’ that the juror is unable or unwilling to
deliberate”].)
         The dismissal of Juror No. 10 on an ambiguous record is particularly
problematic because she had indicated that she was “having problems” with
the elements for the murder charges. Virtually any juror whose views differ
from those of others on the panel may feel “somewhat coerced” or that the


                                        10
deliberation process is “very difficult.” (See People v. Johnson (1992) 3
Cal.4th 1183, 1255 [“jurors can be expected to disagree, even vehemently, and
to attempt to persuade disagreeing fellow jurors by strenuous and sometimes
heated means”].) Our Supreme Court adopted the demonstrable reality test
because “the removal of a seated juror for failing to deliberate is a serious
matter that implicates a defendant’s state and federal constitutional right to
a unanimous decision by the jury.” (See Armstrong, supra, 1 Cal.5th at p.
454.) The removal of Juror No. 10—a potential holdout juror in a murder
case—illustrates the need for a record that manifestly supports the trial
court’s reasoning.
      The People argue that Juror No. 10 was properly dismissed because, in
the deliberations, the foreman told the jurors to “strike” the extrinsic
evidence, and Juror No. 10 said she could not do so. But we may only
consider the “ ‘the record of reasons the court provides’ ” and the “ ‘evidence
on which the court actually relied.’ ” (Armstrong, supra, 1 Cal.5th at p. 451.)
The trial court did not base its ruling on this issue. To the contrary, the court
expressly concluded that Juror No. 10’s inability to continue deliberating was
“based upon, not so much the [extrinsic] information but the . . . way in which
it was presented to her.” Further, the record is unclear whether Juror No. 10
would have been unwilling to follow an instruction from the court (rather
than the foreman) to disregard the extrinsic evidence. The court admonished
the other jurors to disregard the evidence, and they confirmed that they
would do so. The court did not admonish Juror No. 10.
      The People contend that, when Juror No. 10 left the jury room and
waited in the witness room, she demonstrated that she was emotionally
unable to continue deliberating by separating herself from the jury. The trial
court did not cite this prior to dismissing her. Later, however, when ruling


                                       11
on Jones’s motion for a mistrial, the court stated that Juror No. 10
demonstrated her inability or unwillingness to deliberate when she
“physically removed herself from the jury room and refused to return.” We
conclude this finding is unsupported by the record. Juror No. 10 left the jury
room during a break to inform the court of the problem and was not the only
juror to leave. After telling court staff that she wanted to report juror
misconduct, she waited in the courtroom for the judge to return from lunch.
The court then ordered the jury not to resume deliberations until further
notice while it conducted its inquiry. After Juror No. 10 testified, the court
itself, not Juror No. 10, suggested that she wait in the witness room rather
than the jury room. 1 The court then dismissed her before allowing
deliberations to resume. The record does not demonstrate Juror 10 ever
refused to rejoin the jury for deliberations. (See Armstrong, supra, 1 Cal.5th
at p. 452 [record overall did not manifestly support discharging juror for
separating herself from jury by reading book and cell phone during
deliberations].)
      The People point to other facts occurring after the court dismissed
Juror No. 10, but these cannot support a decision the court had already
made. (See People v. Fuiava (2012) 53 Cal.4th 622, 716 [trial court’s decision
must be evaluated based upon the evidence before the court when it ruled].)
      Finally, our dissenting colleague’s deferential approach does not meet
the more rigorous demonstrable reality standard. (See Armstrong, supra, 1
Cal.5th at pp. 450-451.) The dissenting opinion applies a standard closer to


      1At the end of Juror No. 10’s testimony, the court said, “Would you do
me a favor, . . . if you would be kind enough, I believe you feel more
comfortable just waiting in the jury room,” and she responded, “If you don’t
mind.” The court then said, “I’m sorry. In the witness room,” and Juror No.
10 said “Yes.”
                                       12
the substantial evidence test, citing evidence that could support the court’s
decision, minimizing or omitting the parts of the record that undercut the
court’s reasoning, and liberally drawing on inferences to explain the court’s
failure to solve the ambiguity at the heart of this appeal: Was Juror No. 10
unwilling or unable to deliberate, or would it simply have been “very
difficult”? That ambiguity “was never resolved by proof” sufficient to give us
confidence that Juror 10 was properly discharged. (Compton, supra, 6 Cal.3d
at p. 60; Armstrong, supra, 1 Cal.5th at p. 452 [evidence did not manifestly
support discharging juror for failure to deliberate, despite some supporting
evidence].)
        Although we are sympathetic to the quandary facing the trial judge in
these circumstances, the record simply does not support, as a demonstrable
reality, a conclusion that Juror No. 10 was unable or unwilling to continue
deliberating. The 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.)
                                 DISPOSITION
        The judgment is reversed in its entirety. The double jeopardy clauses
of the California and federal Constitutions do not bar retrial of the case.
(Armstrong, supra, 1 Cal.5th at p. 460.)




                                       13
                                 _________________________
                                 BURNS, J.


I CONCUR:


_________________________
JONES, P.J.




A155720


                            14
Needham, J., Dissenting
      Contrary to the majority opinion’s assertion, this case is not about a
trial court’s decision to remove a potential “hold out” juror in a murder case.
(Maj. Opn., at p. 1.) The jury had not been deliberating long, apparently no
vote had been taken, and while Juror No. 10 expressed having had
“problems” with a couple of the elements of one charge, she confessed before
her removal that she was unable to disregard excluded evidence of the
appellant’s prior drunk driving conviction—thus clinging to ill-gotten
information that undermined the appellant’s defense. This appeal, more
accurately, is about the dismissal of a juror who expressed such a telling
combination of inadequacies that no one in the courtroom suggested she was
fit to continue deliberating, and only now, long after appellant’s conviction,
does his lawyer venture that Juror No. 10 should have been forced to stay on
the jury after all.
      In my view, the majority opinion elevates the demonstrable evidence
standard to a daunting new height. And while it may be worth encouraging
trial judges in future cases to create a record that includes the words now
insisted upon by the majority opinion, that lesson could easily be imparted
without championing hindsight at the expense of justice for the parties in
this case. I respectfully dissent.
      A. Applicable Legal Standard
      Under Penal Code section 1089, a trial court has discretion to discharge
a juror who is no longer able or willing to deliberate. On review, we
determine whether the stated basis for the discharge was a “demonstrable
reality”—that is, whether the court’s conclusion was “manifestly supported”
by the evidence on which the court actually relied. (People v. Armstrong




                                       1
(2016) 1 Cal.5th 432, 450-451 (Armstrong); People v. Barnwell (2007) 41
Cal.4th 1038, 1052-1053 (Barnwell).)
      It is critical to remember, however, that while the demonstrable reality
test protects important due process and jury trial rights of the defendant, it
does not abandon every fundamental principle that has long governed
appellate review of determinations by a trial judge. To the contrary, our
Supreme Court has explicitly preserved several principles relevant here.
      First, like the substantial evidence test, the demonstrable reality test
does not allow us to reweigh the evidence. (Barnwell, supra, 41 Cal.4th at p.
1053.) Accordingly, the question is not whether there was such a high degree
of proof that every trier of fact would agree Juror No. 10 was unable or
unwilling to deliberate—or even that we would agree—but merely that the
court’s conclusion finds clear “support” in the evidence it cited.
      Second, we evaluate whether the court’s conclusion is supported by the
cited evidence “in light of the entire record.” (Barnwell, supra, 41 Cal.4th at
pp. 1052-1053, italics added; see Armstrong, supra, 1 Cal.5th at p. 451
[“based on our examination of the record as a whole”].) So while we look to
the trial court’s reasoning and the evidence it cited, we do not close our eyes
to the rest of the record in determining if the cited evidence manifestly
supports the court’s conclusion. The context of the ruling is important.
      Third, we defer to the trial court’s credibility findings and factual
determinations, recognizing it is the trial judge who observed the jurors and
their demeanor. (Barnwell, supra, 41 Cal.4th at p. 1053 [judge may make
determinations based on judge’s personal observations of what transpired,
and those factual determinations are given deference because they are
premised on “firsthand observations unavailable to us on appeal”]; People v.
Lomax (2010) 49 Cal.4th 530, 590.) Indeed, we may draw inferences from the


                                        2
court’s statements to decide that its conclusion is manifestly supported.
(Barnwell, supra, 41 Cal.4th at p. 1053 [although court “did not expressly
state” that it disbelieved a juror’s disclaimer of bias, the “clear thrust of the
court’s ruling” was that it found other jurors’ reports credible and “based its
decision on that finding,” thus establishing a demonstrable reality with the
“totality of the evidence” supporting the court’s “evident conclusion”].)
      The majority opinion charges me with applying a “standard closer to
the substantial evidence test” and misstates my analysis. (Maj. Opn., at pp.
13-14.) The criticism is bewildering, since the standard I apply comes from
the very words our Supreme Court used in defining the test of demonstrable
evidence. While the demonstrable evidence test is “less deferential” (italics
added) than the substantial evidence test, and looks to the facts on which the
trial court based its ruling, it does not abandon all deference or compel
independent review by appellate justices who have nothing but the cold
record to read. (Barnwell, supra, 41 Cal.4th at pp. 1052-1053; Armstrong,
supra, 1 Cal.5th at p. 450.)
      B. Application of the Demonstrable Reality Test
      Our first task, then, is to ascertain the court’s reason for discharging
Juror No. 10 and the evidence on which the court relied. Initially, the judge
indicated his inclination to discharge Juror No. 10 because she “clearly”
expressed an inability to continue deliberating in light of the prejudicial
information she learned—that the defendant had been convicted previously
for driving under the influence—as well as how that information was
presented to her and her perception that she was being “bullied. 1



      1While the judge said Juror No. 10 used the term “bullying,” the
reporter’s transcript indicates she used the words, “somewhat coerced.”

                                         3
      At the time the trial judge discharged Juror No. 10, he provided a
broader explanation for his conclusion, asserting it was “based on the
information you provided to the Court, especially as pertains to your
expressing an inability to continue to deliberate in this case based upon how
all this transpired.” (Italics added.) This “information [Juror No. 10]
provided to the Court” included several salient facts: (1) Juror No. 10 was
“extremely upset” and “felt somewhat coerced” in the way Juror No. 9 told
her, “with attitude,” that the defendant had a prior drunk driving conviction
that was not in evidence; (2) she was “unable” to “strike from the record” the
information about the defendant’s prior conviction; (3) it would be very
difficult for her to continue deliberating in light of the information she
received, the context in which she received it, the impression she had as to
why it was brought up, and the way it was stated; and (4) she had not
returned to the jury room since the lunch break and would be more
comfortable staying in the witness room while the court resolved the matter
(which, as the judge expressed the next court day, indicated to the judge an
inability or refusal to continue deliberating).   2


      Obtained personally by the judge in his face-to-face interview of Juror
No. 10, this evidence—reflecting her mental state, difficulty continuing, and



Under the circumstances here, being “somewhat coerced” into a verdict would
have been as bad as (or worse than) being bullied.

      2 A refusal or inability to deliberate is an unwillingness to engage in
the deliberative process, as shown by, e.g., a juror expressing a fixed
conclusion at the start of deliberations and refusing to consider other points
of view, refusing to talk to other jurors, or trying to separate physically from
other jurors. (People v. Cleveland (2001) 25 Cal.4th 466, 485.) This list is not
exclusive, however, and an inability or unwillingness to deliberate may be
demonstrated by other evidence. (Ibid.)

                                        4
inability to disregard prejudicial extrinsic information—“manifestly
supported” the court’s conclusion that Juror No. 10 was unable to deliberate.
In fact, I find the conclusion inescapable. And whether or not every judge
would have made the same call, certainly the court’s conclusion was
reasonable, clearly supported, and well within its discretion.
      The majority points out that Juror No. 10 did not explicitly say she was
“unwilling” or “unable” to continue deliberating. (Maj. Opn., at p. 9.) There
is, however, no requirement in Penal Code section 1089 or the case law that a
juror, who tells a judge that she is “extremely upset”, feels “somewhat
coerced”, is unable to ignore prejudicial evidence that never should have been
brought into the jury room, and concurs it would be very difficult for her to
continue deliberating, must additionally utter the magic words “I am
unwilling or unable to continue deliberating” before the judge can draw that
conclusion from what the juror did say and how she said it. A trial judge, as
a fact-finder, draws inferences from the evidence, and the demonstrable
reality test does not strip the judge of this historic duty. Nor is there such a
great chasm between “very difficult” and “unable” that it cannot be bridged
by all of the other evidence on which the court here relied.
      The majority opinion further notes that Juror No. 10 did not
specifically ask to be discharged (Maj. Opn., at p. 9), but this too is not
required. Penal Code section 1089 distinguishes instances in which, as here,
a juror is “unable to perform his or her duty” and instances in which a juror
“requests a discharge.” The key in this case is that the evidence referenced
by the court, in its totality, clearly supported the conclusion that Juror No. 10
could no longer perform the duty of a juror. (See People v. Diaz (2002) 95
Cal.App.4th 695, 701-704 (Diaz) [affirming judge’s removal of juror based on




                                        5
judge’s inquiry, observation of the jury, and credibility determination, even
though juror said she could weigh the evidence].)
      The majority opinion’s reliance on People v. Delamora (1996) 48
Cal.App.4th 1850, 1854-1856 is misplaced. There, after deliberating more
than three days, two jurors told the judge their employers would not
compensate them for further jury service and asked the court to help them
persuade their employers to do so. Although the jurors never asked to be
discharged or expressed unwillingness to continue their service, and “no
inquiry of any kind was made” by the court, the court removed the jurors over
defense counsel’s objection. Here, by contrast, Juror No. 10 admitted that
continuing as a juror would be “very difficult” in light of the information she
learned and the manner in which it was conveyed. Based on nothing more
than the statements to which the court referred when discharging Juror No.
10, the demonstrable evidence standard was met.
      But there is more: the record contains important clues that provide
context and inform our evaluation of the evidence cited by the court. (See
Barnwell, supra, 41 Cal.4th at pp. 1052-1053.)
      Preliminarily, the record shows that the judge knew what he was doing
in handling Juror No. 10 and the situation precipitated by Juror No. 9.
(Barnwell, supra, 41 Cal.4th at p. 1052 [court should exercise its “broad
discretion” to remove a juror “with great care”].) He spotted the issues,
inquired of counsel how they wanted to proceed, repeatedly conferred with
counsel in sidebars, interviewed each juror separately, determined that all
jurors could disregard the prior conviction (except Juror No. 10), allowed
counsel to make arguments, remained mindful of the record, issued rulings,
and stated his reasons. The court’s care in addressing the matter overall




                                       6
suggests that its decision not to inquire further of Juror No. 10 was for a good
reason, as opposed to whimsy or neglect.
      That good reason is reflected in the record as well. After a sidebar with
counsel, the court had a further discussion with Juror No. 10 and said, “I
can’t tell you right at this moment what I’m going to do, but for your own
personal wellbeing, I don’t think you’re going to have to concern yourself with
engaging in this any further.” (Italics added.) The court later observed that
Juror No. 10 may have been an “eggshell juror” in her reaction to Juror No.
9’s improper disclosure of information. From this it is plain that the court
found Juror No. 10 credible and believed her assertions of difficulty and
feeling coerced—a determination to which we defer. (Barnwell, supra, 41
Cal.4th at p. 1053.) It also suggests that for court and counsel who heard and
saw Juror No. 10, there was something noteworthy to observe.
      Most importantly, after observing Juror No. 10, neither the prosecutor
nor the defense ever argued that Juror No. 10 should have been asked more
questions, let alone that she was willing and able to deliberate. Although at
one point defense counsel objected to Juror No. 10 being released, that was
because—as counsel later made clear at the hearing—he felt it unfair to deal
with the situation by merely releasing Juror No. 10 (who might have been
leaning toward the defense) and not the rest of the jury, urging that the only
proper solution was to declare a mistrial. Counsel never said Juror No. 10
was able to continue as a fair and impartial juror.
      Given the magnitude of the evidence, the care with which the court
handled its task, the record as a whole, and the absence of any argument
from anyone that Juror No. 10 could remain on the jury, there is to me a clear
inference: the people who not only knew what Juror No. 10 said, but also saw
and heard her say it, concluded she was unable to continue deliberating.


                                       7
That is why the judge did not ask her further questions, why the defense
never asked for further inquiry, and why none was needed. Simply put, to
the trial judge and to trial counsel—who were actually there—Juror No. 10’s
discharge was “manifestly supported” by the evidence. I think so too.
      C. The Majority’s Concerns About the Record are Misplaced
      The majority opinion declines to consider the fact that Juror No. 10 told
the judge she was unable to follow the foreperson’s direction to “strike” the
revelation of the defendant’s prior conviction, because the judge did not
mention it when announcing his ruling. (Maj. Opn., at p. 11.) I disagree.
Juror No. 10’s indication that she was unable to disregard the prior
conviction was part of the “information [she] provided” to the court, which the
judge expressly said he relied upon when discharging her.
      Next, the majority opinion disregards the judge’s observation that
Juror No. 10 “physically removed herself from the jury room and refused to
return,” on the ground the observation is not supported by the record. (Maj.
Opn., at p. 12.) 3 In my view, however, the record amply supports the judge’s
statement. Juror No. 10 left the jury room when a break was called right
after Juror No. 9 made her improper disclosure, bypassed the lunch that the
jurors were “waiting for,” sat in the courtroom alone until the judge was
alerted and began to interview her in the presence of counsel, accepted the
court’s invitation to wait in the witness room, and never returned to the
deliberation room. Indeed, defense counsel agreed with the court’s


      3The judge made this observation on the first court day after
discharging Juror No. 10. It is therefore part of the record of the judge’s
reasoning and must be considered. (See Diaz, supra, 95 Cal.App.4th at p. 702
[considering judge’s explanation for removing a juror, which he stated at a
subsequent hearing on a new trial motion].)


                                       8
observation that Juror No. 10 refused to return to the jury room, stating:
“We’ve got to make sure that the record is clear that [Juror No. 10] refused to
go back in the deliberation room because she was being intimidated by Juror
No. 9 and the other jurors. (Italics added.)
      The majority opinion counters that Juror No. 10 did not literally
“refuse” to deliberate, because the court dismissed her before allowing
deliberations to continue. (Maj. Opn., at p. 12.) But a juror’s
acknowledgement that she would feel better if she sat in a witness room
rather than returning to the room where the other jurors were stationed is
telling. Ultimately, whether we say Juror No. 10 “refused” to return to the
jury room or just felt more comfortable not returning to the jury room, the
point is that this evidence—with all the other evidence relied on by the
court—manifestly supported the conclusion that Juror No. 10 was unwilling
or unable to continue to deliberate.
      The majority opinion characterizes the dismissal of Juror No. 10 as
problematic because she said she was “having problems” with the elements
for the murder charges, and virtually any juror whose views differ from those
of other jurors may feel “somewhat coerced” or find the deliberation process
“very difficult.” (Maj. Opn., at pp. 10-11, citing People v. Johnson (1992) 3
Cal.4th 1183, 1255.) However, the point in Johnson was that, given the often
harsh nature of deliberations generally, the trial judge did not have to
inquire into potential coercive conduct by a purported offending juror (like
Juror No. 9, whose dismissal is not at issue here), in light of the risk that the
court’s inquiry would unduly probe into the substance of the deliberations.
(Id. at p. 1255.) The case did not address the question here: whether there
was good cause to dismiss a juror so offended by another juror’s conduct that
she cannot get the inadmissible prejudicial evidence out of her mind and


                                        9
finds it very difficult to continue. In contrast to Johnson, the court here did
not discharge Juror No. 10 merely because she found deliberations difficult,
but also because Juror No. 10 expressed an inability to ignore improper
information prejudicial to the defense.
      D.    The Availability of Other Questions Is Immaterial
      The majority opinion points out that the trial judge did not ask Juror
No. 10 directly whether she “could” continue deliberations, but instead asked
her if it would be “very difficult” for her to continue. (Maj. Opn., at p. 9.)
Similarly, the majority concludes, Juror No. 10’s indication that it would be
“very difficult” to continue was equivocal and the court should have probed
what she meant. (Maj. Opn., at p. 9.)
      The trial judge’s inquiry into a juror’s ability to serve need only be
reasonable, and its scope and manner are left to the judge’s discretion. (See,
e.g., People v. Engelman (2002) 28 Cal.4th 436, 442.) The judge has no
obligation to ask explicitly the ultimate question—here, whether Juror No. 10
was “unable” to continue deliberating—in every case. Nor is the issue
whether any of us on this appellate panel would have asked that question
before ruling, or whether asking such a question might make a clear record
clearer or even be indispensable in another case. (See People v. Beeler (1995)
9 Cal.4th 953, 989 [although a more detailed inquiry by the court might have
assisted the appellate court, “such inquiry is preferred, [but] it is not
required”].) In light of the evidence the judge cited and the absence of any
request to ask the question, no abuse of discretion has been shown.
      The majority opinion also states that further inquiry of Juror No. 10
might have resolved her concerns about the revelation of the defendant’s
prior conviction and about Juror No. 9. (Maj. Opn., at p. 9.) But that is
speculative, and I find nothing in the record to conclude that the inquiry was


                                        10
needed under the circumstances. As to Juror No. 10’s concerns about the
defendant’s prior conviction, Juror No. 10 had already explained that she was
shocked at the defendant’s prior conviction and was unable to ignore that
information. As to potentially asking Juror No. 10 if she would be able to
deliberate if she knew Juror No. 9 would no longer be on the jury, the record
suggests her concern went far beyond Juror No. 9. In fact, during the
hearing on his mistrial motion, defense counsel acknowledged that Juror No.
10 felt intimidated not only by Juror No. 9, but by the rest of the jury as well:
“We’ve got to make sure that the record is clear that [Juror No. 10] refused to
go back in the deliberation room because she was being intimidated by Juror
No. 9 and the other jurors. That’s how she felt about it. It wasn’t like they
were engaging in proper discussions. Sounds like, it sounded like they were
trying to persuade her to change her mind by using illegal tactics and by
using information that this Court has deemed prejudicial and inadmissible.”
(Italics added.)
      The majority opinion says the record is unclear whether Juror No. 10
would have been unwilling to disregard the prejudicial evidence if instructed
to do so by the judge rather than the foreperson. (Maj. Opn., at p. 11.) To the
contrary, I find the record quite clear. Juror No. 10 already knew that the
jury was not supposed to consider extrinsic information—indeed, that was
part of her concern—so she was already well-informed of the court’s
instruction. Moreover, she expressed an inability to set aside the prejudicial
information no matter who told her to do so. She told the judge that the
foreperson said, “ ‘Just strike that from the record.’ ” Then she informed the
court: “Well, I'm unable to do that, Your Honor.” (Italics added.) Her
statement was far more thans a refusal to go along with a suggestion by the
foreperson; it was an unqualified confession that she could not put out of her


                                       11
mind the excluded prejudicial evidence that the defense had tried so hard to
keep out.
      The cases on which the majority relies for its concern about the judge’s
inquiry are readily distinguishable. In People v. Burgener (1986) 41 Cal.3d
505, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743,
753, the trial court erred in failing to remove a juror where it was notified
that the juror might have been intoxicated during deliberations but did not
even discuss the matter with that juror, thus failing to conduct a sufficient
inquiry. (Id. at pp. 519-521.) Here, by contrast, the court interviewed Juror
No. 10 at length.
      In Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543,
two jurors complained that Juror No. 7 adamantly expressed her opinion and
failed to listen well. The court interviewed only those two jurors, assumed
that Juror No. 7 had made up her mind because she closed her eyes during
closing argument, and discharged her. The court of appeal reversed,
remarking that the judge should have at least interviewed Juror No. 7 and
the foreperson. (Id. at pp. 551-557.) Here, the court interviewed Juror No. 10
(and all the other jurors) before discharging her.
      In People v. Allen and Johnson (2011) 53 Cal.4th 60, it was not entirely
clear what a juror meant when he said he thought the prosecution had no
case when the prosecutor rested, the court did not ask him to explain the
statement, the juror denied making up his mind before deliberations began,
and there was evidence that the juror had in fact participated in
deliberations and voted “undecided.” This evidence was held insufficient to
remove the juror. (Id. at pp. 72-75.) Here, by contrast, the court did not rely
on the opinions of other jurors but on the words of Juror No. 10 herself, who
never claimed she could continue to deliberate.


                                       12
      In People v. Compton (1971) 6 Cal.3d 55, a juror stated to his barber
that he did not like to be on the case because it was hard to keep an open
mind. Although the trial judge “recognized” that the juror’s remark was
equivocal, he did not question the juror about the statement. And even
though the judge decided that the remark did not show an inability to serve,
he discharged the juror anyway out of an abundance of caution. (Id. at pp.
59-60.) The appellate court reversed because the ambiguity in the juror’s
remark was “not resolved by proof” and the judge was not entitled to merely
“presume[e] the worst.” (Id. at p. 60.) Here, any ambiguity in Juror No. 10’s
agreement that it would be “very difficult” to continue deliberating was
resolved by proof: her statements that she was “extremely upset,” felt
“coerced,” and was “unable” to disregard the excluded prejudicial evidence.
      In People v. Goldberg (1984) 161 Cal.App.3d 170, a juror became upset
and asked to be excused after another juror improperly referred to a news
article during deliberations. The court acted within its discretion in declining
to discharge the juror because, after the judge conferred with the juror, she
said she could continue on the jury uninfluenced. (Id. at pp. 191-192.)
Unlike the juror in Goldberg, however, Juror No. 10 never said she could
continue to deliberate. And while the appellate court in Goldberg recounted
the judge’s statements to the juror, its purpose in doing so was descriptive,
not prescriptive; Goldberg does not hold that it would be an abuse of
discretion for a judge in a different case to conduct a different inquiry. 4


      4 The majority opinion also cites People v. Bennett (2009) 45 Cal.4th
577. There, the court found that the trial judge’s decision not to remove a
juror was within his discretion where the juror had expressed that, while
difficult, he could verbally affirm his verdict in open court if he had to. (Id. at
pp. 621-623.) Juror No. 10 made no such affirmation.


                                        13
      All of these cases are distinguishable because they dealt with instances
in which a trial judge ruled without addressing the key issue with the juror
whose ability to deliberate was in question. Moreover, in most of the cases,
the issue was whether the trial judge could rely on information supplied by
other jurors to remove a juror who wanted to remain and who professed an
ability to deliberate. Here, by contrast, the issue is whether the juror herself
expressed facts clearly supporting the conclusion that she was not able or
willing to deliberate further. A juror’s unchallenged and credible expression
of her own difficulties in continuing deliberation would typically be of greater
weight than the mere speculations of other jurors. (See, e.g., People v.
Samuels (2005) 36 Cal.4th 96, 131–133 [discharge of juror upheld where the
juror was distressed, told the court she could not consider imposition of the
death penalty, and lacked courage to act on an obligation to do so if
appropriate]; Diaz, supra, 95 CalApp.4th at pp. 702-704 [within court’s
discretion to discharge a juror who initially said she was having difficulty in
the jury room, cried, and said other jurors were “bombarding” her, even
though she later recanted, in light of the court’s credibility call after inquiry
and observation of her expression, tone, and manner].)
      When it comes down to it, the discharge of Juror No. 10 was the clearly
prudent decision, or at the very least within the trial court’s broad discretion.
To reverse the conviction because the judge did not employ the best words to
convey the obvious is not consonant with appellate review or justice. And
while the demonstrable reality test “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” (Barnwell, supra, 41 Cal.4th at p. 1052), it is an odd result
indeed that the majority opinion would place the defendant’s fate in the
hands of a juror who by all accounts felt coerced and was no longer unbiased.


                                        14
      In sum, the judge in this case conducted an inquiry within the scope of
his discretion, and he relied on evidence that provided manifest—if not
overwhelming—support for removing Juror No. 10 in light of the entire
record. Appellant’s argument as to the removal of Juror No. 10 should
therefore be rejected, and we should consider the other issues appellant has
raised in his opening brief.




                                    NEEDHAM, J.



A155720




                                     15
Alameda County Superior Court, Case No. H58702, Hon. Paul Delucchi


Michael Goldrosen for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance W. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Catherine A. Rivlin, Supervising Deputy Attorney General, Andrew Hamilton
Smith, Deputy Attorney General, and Bruce Slavin, Deputy Attorney
General, for Plaintiff and Respondent.




                                   16
