Filed 7/17/20
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



 THE PEOPLE,                                       D072639

          Plaintiff and Respondent,

          v.                                       (Super. Ct. No. SCN331782)

 JEFFREY SCOTT BARTON,

          Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Harry M.

Elias, Judge. Reversed.



        Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted Jeffrey Scott Barton of five counts of forcible oral copulation

(Pen. Code, § 288a, subd. (c)(2))1 and one count of forcible sodomy (§ 286, subd.

(c)(2)(A)). However, the jury reached its verdict only after the trial court discharged a

holdout juror, Juror No. 12, after it found she was refusing to deliberate. Thereafter, the

trial court sentenced Barton to a prison term of 48 years.

       Barton appeals, contending, inter alia, that the trial court abused its discretion by

discharging Juror No. 12 on the basis that she was refusing to deliberate. Barton

contends that the other jurors' testimony demonstrates only that Juror No. 12 disagreed

with the other jurors, who found her to be unfriendly and unable to offer persuasive

explanations for her opinion, not that she was unable or unwilling to deliberate. We

agree. Under the heightened standard of review that applies to a trial court's decision to

discharge a holdout juror for refusing to deliberate, we conclude the trial court's decision

to discharge Juror No. 12 is not manifestly supported by evidence. Accordingly, we need

not address Barton's other contentions on appeal and reverse the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Given our discussion on appeal is limited to the discharge of Juror No. 12, we

provide only a limited review of the underlying trial.

       In 1999, John Doe enrolled at the Army Navy Academy (Academy), a military

boarding school in Carlsbad, California. At that time, Doe was 14 years old. Doe lived



1      Penal Code section 288a was renumbered to section 287 after Barton's conviction.
All further statutory references are to the Penal Code unless otherwise specified.

                                              2
on campus in a cottage that housed multiple "cadets." Barton also lived on campus and

was employed as the Director of Summer Programs. He was heavily involved with the

cadets in various activities.

       Barton was John Doe's homeroom teacher. After Doe enrolled, he and Barton

soon developed a close relationship outside the classroom. In 2000, after an Academy

staff member became suspicious about the relationship between Barton and Doe, Doe

was interviewed but denied any molestation or inappropriate behavior by Barton.

Around the same time, John Doe told his grandparents that Barton was abusing and

molesting him. His grandparents did not take any action or report Doe's claim, telling

him they thought he was falsely accusing Barton to get out of attending the Academy.

       In 2013, over a decade after he left the Academy, Doe told his mother for the first

time that Barton had molested him years earlier when he was a cadet. His mother called

the police the next day. During an interview with the police, and then later at trial, Doe

detailed multiple incidents in which Barton committed lewd acts and performed oral

copulation and sodomy. Subsequent investigation discovered two additional victims in

other states who testified that Barton molested them as children in the years before

Barton met John Doe.

       Based on those allegations, Barton was charged with 20 counts of various sexual

crimes against three victims, Doe and two other boys at the Academy. At Barton's first

trial, the jury found him not guilty of all but one of the counts arising from his alleged

conduct regarding the other victims, and was unable to reach a verdict as to the remaining

count and all the counts involving John Doe.

                                              3
       The People then filed an amended indictment charging Barton with 10 counts of

forcible oral copulation (§ 288a, subd. (c)(2)) and one count of sodomy by force (§ 286,

subd. (c)(2)(A)), all involving John Doe. The indictment alleged that it was filed within

one year of a report by the victim to law enforcement claiming forcible oral copulation

and forcible sodomy when the victim was under the age of 18, thereby satisfying the

statute of limitations. (§ 803, subd. (f).)

       At the second trial, the prosecution's case was largely premised on John Doe's

testimony bolstered by his earlier statements to law enforcement. In his defense, Barton

presented multiple witnesses who testified they never saw Barton act inappropriately

toward his students. Barton was also able to highlight many inconsistencies and

impossibilities in John Doe's testimony and statements regarding Barton's conduct. John

Doe also acknowledged that he filed a lawsuit against the Academy premised on Barton's

conduct and was seeking $1.79 million in damages.

       In closing argument, Barton's counsel focused on contesting Doe's credibility. She

argued that Doe's own grandparents did not believe him. She asserted that Doe

concocted the story simply to obtain a "substantial amount of money" via his lawsuit.

       Jury deliberations began on Thursday, May 25, but lasted only 16 minutes before

recessing in the evening for the weekend. Deliberations resumed on Tuesday, May 30,

when the jury deliberated for over five hours.

       Early the next morning, after almost an additional hour of deliberations, the court

received a note from Juror No. 6, asking: "Is it possible to proceed with an alternate juror

if we suspect that a single juror is trying to nullify the rest of the jurors?"

                                                4
       The parties agreed that the court should conduct an inquiry. The court first

questioned Juror No. 6, who indicated that Juror No. 12 was telling the other jurors that

she would not change her opinion on Barton's guilt and was not engaging in further

discussions. The court then allowed counsel to question Juror No. 6. Juror No. 6

clarified that Juror No. 12 would answer direct questions but was firm in her opinion.

When questioned further, Juror No. 6 revealed that Juror No. 12 maintained that she did

not believe John Doe.

       The court and counsel then questioned Juror No. 12. She told the court she was

not trying to nullify the jury's verdict and was willing to engage in discussion. Juror No.

12 indicated she felt strongly about the evidence and disagreed with the other jurors, but

had listened to the others discuss the evidence. Based on this testimony, the court found

that Juror No. 12 was not refusing to deliberate and no further questioning of the jury was

necessary. The court instructed all the jurors to continue to deliberate.

       The next morning, the court received another note from the jury, this time stating

that "Juror No. 12 refuses to deliberate." The court indicated it would question all the

jurors and allow counsel to ask questions.

       The court called each juror individually for questioning in descending order. Juror

No. 11 believed that Juror No. 12 had made up her mind "right from the get-go." After

the court's initial questioning the day before, Juror No. 12 returned to the deliberations

and asked to hear two of the transcripts from trial. Toward the end of the second

transcript, Juror No. 11 observed Juror No. 12 yawning and believed "she had tuned out."

Juror No. 11 testified that Juror No. 12 would not talk "freely, openly" about her feelings

                                              5
and was either unwilling or unable to answer questions posed by the other 11 jurors.

During deliberations, Juror No. 12 would share her opinion with the other jurors, but

would not engage in further discussion. Juror No. 11 faulted Juror No. 12 with not being

part of the "small talk" during breaks in the trial and that it seemed unusual that she was

not part of the group.

       Juror No. 10 agreed that Juror No. 12 was refusing to deliberate. Juror No. 12

initially appeared to be considering other opinions, but failed to give the other jurors

reasons for her own opinions. Juror No. 10 further explained: "I think she honestly

believes that she's sharing everything there is to share. But I don't think the rest of us feel

that she is." Juror No. 10 explained that "Juror No. 12 has stated her opinion multiple

times—but that's where it goes. But it's an opinion about one thing." Explaining further,

Juror No. 10 stated that the other jurors communicated to Juror No. 12 that "[w]e want to

know why you are thinking this because everybody else has said why they are thinking

what they are thinking. And she maintains that she shouldn't have to defend her opinion."

During deliberations, Juror No. 10 brought a document to Juror No. 12 to discuss, but

Juror No. 12 refused to look at the document and said Juror No. 10 was being aggressive

by standing over her. The other jurors continued to ask Juror No. 12 to elaborate on or

clarify her position, but Juror No. 12 would respond by declaring she was "not on trial."

Juror No. 10 explained that Juror No. 12 would answer "as if she feels she clarified her

position . . . but it's still . . . not clear." The other jurors were "unsatisfied with her

response." Juror No. 10 observed that Juror No. 12 sat apart from the other jurors at

breaks during trial and, once deliberations began, Juror No. 12 did not laugh and joke

                                                 6
with other jurors about "random" topics and did not "want to participate in friendly

conversations."

       Juror No. 9 agreed that Juror No. 12 was refusing to deliberate and stated that

whereas "eleven of us have very carefully and systematically and honestly gone through

the evidence in a very logical, progressive way, . . . [Juror No. 12] will not express why

she believes the way she does, as we all have." Juror No. 9 acknowledged that Juror No.

12 would answer questions, but "[s]he kept saying the same thing." As deliberations

progressed, Juror No. 12 would respond to questions by saying " 'I've decided. I've made

up my mind. I'm not going to change my mind. And I have nothing more to add.' "

Juror No. 9 acknowledged Juror No. 12 went through her notes and the printed evidence

"pretty well" at the start of deliberations, but "she commented very little on it." Juror No.

9 also expressed that Juror No. 12 was not very open to "chitchat."

       Juror No. 8 agreed that Juror No. 12 was refusing to deliberate. Juror No. 8

explained that Juror No. 12 refused to give information to sway the other jurors to her

point of view. Juror No. 12 was responding to questions from the other jurors, but Juror

No. 8 believed the answers were nonresponsive to the questions. The other jurors were

growing exasperated with Juror No. 12's repeated responses, telling her that "you've said

this over and over again. We need to hear something different. We need to hear . . . why

you're feeling this way." Juror No. 8 explained that during trial, Juror No. 12 would not

talk with the other jurors and would physically separate herself during "breaks or in the

deliberation room."



                                              7
       Juror No. 7 agreed Juror No. 12 was not deliberating. Juror No. 7 believed that

Juror No. 12 had already made up her mind at the start of deliberations. Juror No. 7

further explained that Juror No. 12 was not participating in "our in-depth conversations"

and had said "[a] handful of words, and that's it." Juror No. 12 would answer questions,

but Juror No. 7 believed she was "not acting like a reasonable person." Explaining

further, Juror No. 7 stated that although Juror No. 12 would share her opinion, "[s]he's

not giving us enough of an opinion to support anything." Juror No. 7 denied that Juror

No. 12 was physically separating herself during deliberations, noting that she was sitting

at the head of the table. However, Juror No. 12 separated herself outside the jury room.

Juror No. 7 faulted Juror No. 12 with not being friendly during trial and sitting off to the

side instead of "joking and talking about life."

       Juror No. 5 agreed that Juror No. 12 was refusing to deliberate. Juror No. 5

indicated Juror No. 12 was looking at the evidence and verbally responding to questions,

but failed to answer the questions posed. Juror No. 12 would offer her opinion, but

provide "no backup for the opinion." Juror No. 5 noted that Juror No. 12 separated

herself during the trial.

       Juror No. 4 likewise agreed Juror No. 12 was not deliberating because "[s]he gives

her opinion, but she doesn't want to explain why. And it's difficult to have a discussion

about it if she won't explain why." Juror No. 4 stated that when deliberations started,

Juror No. 12 "did give some—a reason. And when we tried to dig deeper into those

reasonings or give our reasonings for another view, that's when she started shutting down

and not wanting to discuss it further." Revealing Juror No. 12's reasoning, Juror No. 4

                                              8
suggested that "she isn't believing one part of evidence to be true, she's discrediting the

entire witness . . . ." Juror No. 4 stated that at the start of deliberations, Juror No. 12

"right away, she gave her opinion. And it hasn't changed." Juror No. 4 acknowledged

that Juror No. 12 verbally responded to questions, but agreed with the characterization

that her answers were "not to the satisfaction of the eleven." Like the other jurors, Juror

No. 4 noticed that Juror No. 12 "wasn't involving herself in on our breaks or at lunch."

       Juror No. 3 did not believe Juror No. 12 was deliberating because the other jurors

had been trying to figure out Juror No. 12's point of view "[b]ut she won't talk about it."

Juror No. 3 agreed that when deliberations began, there was initially more of a dialogue

with Juror No. 12 explaining her position. However, Juror No. 3 opined that Juror No. 12

had an opinion from the very beginning and was not willing to consider other viewpoints.

Juror No. 3 acknowledged that Juror No. 12 looked at the physical evidence, listened to

testimony, and consulted her notes. Although Juror No. 12 remained at the table during

deliberations, she did not participate in the jurors' discussion. Juror No. 3 expressed

frustration because Juror No. 12 had an "opinion with no facts or evidence behind it."

       Juror No. 2 told the court that Juror No. 12 was "definitely" refusing to deliberate,

with "no exchange of information." Juror No. 2 believed Juror No. 12 formed her

opinion at the start of deliberations. Juror No. 12 would review the evidence and respond

to questions, but "would not answer a yes-or-no question with a yes or no, ever." Juror

No. 12 never stated that she was refusing to deliberate or to consider the law. While the

other jurors were discussing the evidence, Juror No. 12 would "roll her eyes and look

away." However, Juror No. 2 believed that Juror No. 12 was listening to the evidence

                                               9
and "engaged in that process." When discussing her own opinion, Juror No. 12 "wouldn't

use any evidence to back up what she says." Juror No. 2 also noticed that Juror No. 12

distanced herself from the others throughout the trial and would not say hello or chat with

the other jurors.

       Juror No. 1 had the impression that Juror No. 12 was refusing to deliberate. Juror

No. 1 further revealed Juror No. 12's opinion, explaining that "[i]t's easy [for Juror No.

12] to say, 'I don't believe John Doe.' But I can also then say, that I would ask, 'What

about his testimony bothers you?' [¶] [Juror No. 12] absolutely will not answer the

question. I mean totally will not answer." Juror No. 1 elaborated by stating that "[t]he

purpose of virtually every question that was directed to her was an attempt to get her to

present any factual tidbit that caused her to take the position she was taking. In other

words, "I don't believe John Doe." When asked to explain her opinion, Juror No. 12

would "go back and repeat her same words, " 'I just don't believe him.' " During a

preliminary vote at the start of deliberations, Juror No. 12 told the other jurors that she

was intending to vote "not guilty." Juror No. 1 did not believe Juror No. 12 considered

the other jurors' viewpoints.

       Juror No. 6 returned for questioning and still agreed Juror No. 12 was refusing to

deliberate. On the last morning of deliberations, Juror No. 12 was refusing to deliberate

further and, when questioned, affirmed that her opinion was set and that she was " 'going

to vote the same way on everything no matter what evidence [the jurors] discuss.' "

When asked, Juror No. 12 would refuse to list the evidence supporting her opinion. Juror



                                              10
No. 6 told the court that Juror No. 12 resisted making "small talk" during breaks in the

trial and remained distant during deliberations.

       The court concluded its inquiry by questioning Juror No. 12 and allowing counsel

to ask questions. Juror No. 12 denied that she was refusing to deliberate and explained

that "I am participating, I am deliberating, I am stating my side. I have been stating my

side. I continue to state my side. Their side is opposite. That's the problem." Juror No.

12 stated that she was considering the evidence, but simply had a different view than the

other jurors. She stated that she was considering the law and all the evidence when

deliberating and had, to the best of her ability, answered the other jurors' questions. Juror

No. 12 opined that the deliberation issues arose because she did not agree with the other

jurors, who "believe that if they get an alternate, then that [alternate] will side with their

side." Juror No. 12 acknowledged that she distanced herself from the other jurors during

breaks in the trial, but only did so to avoid talking about the case. Juror No. 12 expressed

that she thought she had engaged in the deliberative process, had initially explained her

position, and had considered the viewpoints of the other jurors.

       After hearing argument from counsel, the court made a series of findings based on

its review of the jurors' testimony. The court noted that the jurors consistently described

a process in which they all attempted to engage Juror No. 12 in discussing the case.

Finding certain jurors more credible than others on different topics, but ultimately finding

them all credible, the court accepted their testimony that Juror No. 12 did not have a fixed

conclusion before the start of deliberations, but rather "started the process the same as

everybody else did at the very beginning." However, the court found that Juror No. 12

                                              11
quickly reached a fixed conclusion "at or near the beginning of deliberations." The court

found Juror No. 12 refused to speak to the other jurors and, while unable to separate

physically from the remaining jurors given the small size of the jury room, Juror No. 12

created a "sort of an emotional distance" from the other jurors. Based on these findings,

the court concluded Juror No. 12 was refusing to deliberate and discharged her pursuant

to section 1089. Barton's counsel immediately moved for a mistrial, which the court

summarily denied.

       The court replaced Juror No. 12 with an alternate juror. After less than five hours

of deliberations, the newly constituted jury found Barton guilty of six counts and not

guilty of five counts. Thereafter, the court sentenced Barton to consecutive terms of eight

years on each of the six counts, for a total determinate prison term of 48 years. Barton

filed a timely appeal.

                                       DISCUSSION

       Barton's first argument on appeal challenges the trial court's discharge of Juror

No. 12. "[S]ection 1089 sets forth the procedure for removing a sitting juror." (People v.

Boyette (2002) 29 Cal.4th 381, 462.) It provides, in relevant part, as follows: "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, or if a juror requests a discharge and good cause appears therefor, the

court may order the juror to be discharged . . . ." (§ 1089.) Good cause exists to

discharge a juror when the juror loses his or her ability to render a fair and impartial



                                             12
verdict based on the evidence presented at trial. (People v. Warren (1986)

176 Cal.App.3d 324, 327.)

       In most circumstances, section 1089 is applied to remove a juror "who becomes

physically or emotionally unable to continue to serve as a juror due to illness or other

circumstances." (People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).)

However, section 1089 also has been applied "to permit the removal of a juror who

refuses to deliberate, on the theory that such a juror is 'unable to perform his duty.' "

(Id. at p. 475.)

       In Cleveland, the Supreme Court urged that "caution must be exercised" in

removing a juror for refusing to deliberate "to protect the sanctity of jury deliberations."

(Cleveland, supra, 25 Cal.4th at p. 475.) Later, in People v. Armstrong (2016) 1 Cal.5th

432 (Armstrong), the Supreme Court reminded trial courts "that 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." (Id. at p. 454.)

       Given this need for caution, both the trial court's discretion and our review of the

trial court's decision is subject to a heightened standard. "Removing a juror is, of course,

a serious matter . . . . 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).) An appellate court's "review of the decision to

remove a seated juror is not conducted under the typical abuse of discretion standard, but

rather under the 'demonstrable reality' test." (People v. Fuiava (2012) 53 Cal.4th 622,

711 (Fuiava); see also Armstrong, supra, 1 Cal.5th at pp. 453-454.) Our Supreme Court

                                              13
explained in Fuiava: "The typical abuse of discretion standard involves an analysis of

whether the trial court's decision is supported by ' "substantial evidence," ' and 'has been

characterized as a "deferential" standard.' " (Fuiava, at p. 711.) "Even when there is a

significant amount of countervailing evidence, the testimony of a single witness that

satisfies the standard is sufficient to uphold the finding." (Ibid.) In contrast, " '[t]he

demonstrable reality test entails a more comprehensive and less deferential review. It

requires a showing that the court as a trier of fact did rely on evidence that, in light of the

entire record, supports its conclusion that [good cause for removing the juror] was

established.' " (Id. at p. 712.) Under the demonstrable reality standard, reviewing courts

"must be confident that the trial court's conclusion is manifestly supported by evidence on

which the court actually relied." (Barnwell, at p. 1053.) In reaching that conclusion, this

court considers "not just the evidence itself, but also the record of reasons the court

provides." (Ibid.) The "heightened" and "more stringent" demonstrable reality standard

"more fully reflects an appellate court's obligation to protect a defendant's fundamental

rights to due process and to a fair trial by an unbiased jury." (Id. at p. 1052; see also

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71 (Allen).)

       "As we have consistently cautioned, however, even under the demonstrable reality

standard the reviewing court does not reweigh the persuasive value of the evidence."

(Fuiava, supra, 53 Cal.4th at p. 714, italics added.) "[E]ven when there is conflicting

evidence . . . an appellate court must recognize that it is for the trial court to 'weigh the

credibility of those testifying and draw upon its own observations of the jurors

throughout the proceedings,' and the reviewing court must 'defer to factual determinations

                                              14
based on these assessments.' " (Ibid.) Accordingly, reviewing courts must defer to the

trial court's assessments of a juror's credibility or mental and physical conditions, "based

'on firsthand observations unavailable to us on appeal.' " (People v. Powell (2018)

6 Cal.5th 136, 156 [mental and physical conditions]; Barnwell, supra, 41 Cal.4th at

p. 1053 [credibility].)

       Here, the trial court discharged Juror No. 12 after following the procedures set

forth by the Supreme Court in Cleveland. Initially, a court should conduct a reasonable

inquiry into allegations of misconduct " 'where the court possesses information which, if

proven to be true, would constitute "good cause" to doubt a juror's ability to perform his

duties and would justify his removal from the case.' " (Cleveland, supra, 25 Cal.4th at

p. 478.) Before conducting such an inquiry, "it often is appropriate for a trial court that

questions whether all of the jurors are participating in deliberations to reinstruct the jurors

regarding their duty to deliberate and to permit the jury to continue deliberations before

making further inquiries that could intrude upon the sanctity of deliberations. It also is

clear . . . that when reinstruction does not resolve the problem and the court is on notice

that there may be grounds to discharge a juror during deliberations, it must conduct

'whatever inquiry is reasonably necessary to determine' whether such grounds exist."

(Id. at p. 480.)

       If the court proceeds to conduct a further inquiry, it "must take care in inquiring

into the circumstances that give rise to a request that a juror be discharged, or an

allegation that a juror is refusing to deliberate, lest the sanctity of jury deliberations too

readily be undermined." (Cleveland, supra, 25 Cal.4th at p. 484.) A trial court must take

                                               15
care to not require disclosure of the content of jury deliberations because a juror's verbal

reflection of the reasons for his or her vote would improperly disclose the juror's mental

processes. (Id. at pp. 484-485.) The inquiry should be limited in scope, focus on the

conduct of the jurors rather than the content of deliberations, and "should cease once the

court is satisfied that the juror at issue is participating in deliberations and has not

expressed an intention to disregard the court's instructions or otherwise committed

misconduct, and that no other proper ground for discharge exists." (Id. at p. 485.) To

limit the scope of the inquiry, the Cleveland court instructed that "permitting the

attorneys for the parties to question deliberating jurors is fraught with peril and generally

should not be permitted." (Ibid.)

       During the inquiry, the court should focus on determining whether the jurors'

testimony supports the conclusion that a juror is refusing 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



                                               16
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, supra, 25 Cal.4th at

p. 485.)

       Applying the general principles and procedures set forth in Cleveland, the trial

court below first instructed the jury on its continued duty to deliberate after receiving the

first note. It was only after receiving another note the following day that the court

determined that a further inquiry was warranted. The court, however, failed to heed the

Supreme Court's warning that "permitting the attorneys for the parties to question

deliberating jurors is fraught with peril and generally should not be permitted."

(Cleveland, supra, 25 Cal.4th at p. 485.) Rather than leading its own inquiry, the trial

court largely abdicated the questioning to the attorneys. While this alone is not

prejudicial error, it likely shaped the inquiry and framed the trial court's ultimate

decision.

       All of the 11 other jurors offered their opinion that Juror No. 12 was refusing to

deliberate and, based on this testimony, the trial court found that Juror No. 12 was unable

to "participate in discussion with fellow jurors"; had a "fixed conclusion . . . at or near

the beginning of the deliberations"; "refus[ed] to consider other points of view";

"refus[ed] to speak with other jurors"; and that while she had not physically separated



                                              17
from the other jurors given the small jury room, she created a "sort of an emotional

distance" from the other jurors.

       Although these factors were generally recognized in Cleveland as supporting a

conclusion that a juror is refusing to deliberate, we are not "confident that the trial court's

conclusion is manifestly supported by evidence on which the court actually relied."

(Barnwell, supra, 41 Cal.4th at p. 1053.)

       Although the jurors all offered their ultimate opinion that Juror No. 12 was

refusing to deliberate, "a trial court should be wary of relying on the opinions of jurors,

rather than on its own consideration of objective facts." (Allen, supra, 53 Cal.4th at

p. 75.) Instead of reaching a conclusion premised on the other jurors' opinions, the court

"should focus on its own consideration of a juror's conduct." (Ibid.) "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." (People v. Engelman (2002) 28

Cal.4th 436, 446 (Engelman).)

       Setting aside the jurors' opinions regarding Juror No. 12, their testimony regarding

Juror No. 12 did not reveal that her conduct objectively evinced a refusal to speak with

other jurors or consider their viewpoints and the evidence adduced at trial. At most, the

jurors expressed a dissatisfaction with the quality and content of Juror No. 12's comments

                                              18
and her ultimate opinion regarding the evidence. For example, Juror No. 2 expressed

dissatisfaction with how Juror No. 12 responded—refusing to answer "yes-or-no

question[s] with a yes or no"—and the perceived quality of her answers, which Juror

No. 2 viewed as opinions without "any evidence to back up what she says." Juror No. 1

likewise testified that Juror No. 12 would repeatedly offer her opinion during

deliberations, but faulted her with failing "to present any factual tidbit that caused her to

take the position she was taking." Likewise, Juror No. 7 acknowledged Juror No. 12

would answer questions, but faulted her with "not acting like a reasonable person" and

offering an opinion with "no reasoning to it."

       Other jurors admitted Juror No. 12 continued to discuss the case in deliberations

but faulted her reasoning premised on a single opinion, believing she needed to express

additional opinions on other topics. Juror No. 10 stated that "Juror No. 12 has stated her

opinion multiple times and—but that's where it goes. But it's an opinion about one

thing." Juror No. 9 expressed her dissatisfaction with Juror No. 12's contribution to the

discussion because "[s]he kept saying the same thing." Juror No. 8 expressed frustration

with Juror No. 12's repeated responses and told her that "you've said this over and over

again. We need to hear something different. We need to hear why you—why you're

feeling this way."

       These comments, along with other comments, suggest that Juror No. 12 was

speaking with the other jurors, considering their viewpoints, and offering her opinion in

deliberations. Simply because the other jurors were not satisfied with her opinion and the

quality of her reasoning does not support a finding that she was refusing to deliberate.

                                              19
"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." (Cleveland, supra, 25 Cal.4th at p. 485.) "It is not always easy

for a juror to articulate the exact basis for disagreement after a complicated trial, nor is it

necessary that a juror do so. As we have stated, it is not required that jurors deliberate

well or skillfully." (Engelman, supra, 28 Cal.4th at p. 446.)

       The jurors' testimony also does not support the trial court's finding that Juror

No. 12 refused to deliberate because she formed a "fixed conclusion" regarding the case

before she reasonably could do so. Notably, the court found that Juror No. 12 began

deliberations "the same as everybody else did at the very beginning."

       Even accepting the truth of the testimony of the other jurors, Juror No. 12's quick

decision regarding the strength, or lack thereof, of the prosecution's case does not

disclose a basis for her removal standing alone. "It is not uncommon, or grounds for

discharge, '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.' " (Armstrong, supra,

1 Cal.5th at p. 453; quoting People v. Bowers (2001) 87 Cal.App.4th 722, 734 [104

Cal.Rptr.2d 726] (Bowers).)



                                              20
       The factual scenario here bears a strong resemblance to the scenario giving rise to

the decision in Bowers, where the appellate court concluded the trial court abused its

discretion in discharging a juror. In Bowers, the defendant was charged with sexual

offenses against a minor. (Bowers, supra, 87 Cal.App.4th at pp. 724-725.) Early on the

fourth day of deliberations, the jury foreman informed the court that one of the jurors was

refusing to deliberate. (Id. at p. 725.) The court then questioned the jurors, who revealed

that the holdout juror had stated that he did not believe the victim's testimony and despite

being willing to listen to the other jurors, was insistent in his conclusion and became

inattentive as they continued their deliberations and implored him to change his mind.

(Id. at pp. 726-727.) The trial court discharged the juror, finding that he "refused to

engage in meaningful deliberations" and had refused to "explain to [the other jurors] the

basis for his reasoning for the position that he had taken." (Id. at p. 727.) The trial court

concluded that the holdout juror "did not enter into meaningful deliberations. That either

he made up his mind here in the courtroom after having heard the first witness, which is

what he apparently told his fellow jurors or once he got in the jury room after he initially

and almost immediately indicated his position and refused to meaningfully discuss that

position with the other jurors or to meaningfully consider the statements and the evidence

as they attempted to discuss with him. And that he refused to participate with them even

after their numerous efforts to advise him of his duty and to attempt to elicit

cooperation." (Id. at p. 728.)

       The appellate court reversed, concluding the trial court abused its discretion in

discharging the juror. The Bowers court explained that the record demonstrated the juror

                                             21
"deliberated and participated to some degree in group discussions." (Bowers, supra, 87

Cal.App.4th at p. 732.) Moreover, it recognized that a juror who "either made up his

mind in the courtroom after hearing the first witness or almost immediately after

deliberations started . . . does not amount to misconduct or a failure to deliberate." (Id. at

p. 733.) "It cannot be said a juror has refused to deliberate so long as a juror is willing

and able to listen to the evidence presented in court, to consider the evidence and the

judge's instructions, and to finally come to a conclusion and vote, which is precisely what

[the juror] did. If the jury hangs because one juror has persistent doubts about the

sufficiency of evidence against defendant despite deliberating without bias, a mistrial

should result." (Id. at p. 735.)

       Here, like in Bowers, Juror No. 12 appears to have quickly reached the conclusion

that John Doe was not credible. The record does not reveal that she refused to listen to

the evidence or follow the court's instructions regarding how to consider the evidence and

did not hesitate to express her opinion in deliberation with the other jurors. The record

does not suggest her credibility determination was the result of any form of bias or made

without considering other evidence. The trial court did not find otherwise and in light of

the testimony at trial, we cannot say that Juror No. 12's conclusion that Doe was not

credible was manifestly irrational. It is certainly within a juror's purview, as instructed

by the court, to consider the witnesses' credibility in reaching her conclusion. (See, e.g.,

People v. Jones (1990) 51 Cal.3d 294, 314 ["it is the exclusive province of the trial judge

or jury to determine the credibility of a witness and the truth or falsity of the facts on

which that determination depends"].) Juror No. 12's relatively quick consideration of the

                                              22
evidence and reaching a conclusion regarding Barton's guilt based on her own credibility

determination does not support a finding that she refused to deliberate. Indeed, after

Juror No. 12 was replaced, the newly constituted jury reached its verdict within a few

hours. Neither the prosecution nor the court suggested that the entire jury's relatively

quick decision was based on any misconduct by those jurors or refusal to deliberate. Just

as a jury could reasonably reach a decision within a few hours, Juror No. 12 could

reasonably reach her conclusion that Barton was not guilty within a few hours.

       Once Juror No. 12 reached her conclusion, her refusal to change her mind and her

decision to no longer attempt to explain that decision to the other jurors also does not

amount to misconduct. "[T]he court may not discharge a juror for failing to agree with

the majority of other jurors or for persisting in expressing doubts about the sufficiency of

the evidence in support of the majority view. . . ." (Engelman, supra, 28 Cal.4th at

p. 446.) "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, supra, 25

Cal.4th at p. 485.) Juror No. 12 participated in deliberations for multiple days and,

although she ultimately did not change her mind, the record discloses that she listened to

other jurors and continued to consider the evidence for a reasonable time. Although

jurors may often change their mind based on their discussions with the rest of the jury,

maintaining a consistent opinion across multiple days of deliberations does not

demonstrate a refusal to deliberate.



                                             23
       The trial court also found Juror No. 12 created a "sort of emotional distance" with

the other jurors, supporting the conclusion that she was refusing to deliberate. We do not

disagree that the other jurors offered testimony supporting this conclusion. They testified

Juror No. 12 did not engage in "small talk" or "chitchat" with the other jurors during

breaks in the trial. Others suggested she was not friendly. She did not, however,

physically separate herself during deliberations. Rather, she sat at the head of the table.

       While the Supreme Court in Cleveland held that a juror who separates herself

physically from the remainder of the jury may suggest she is refusing to deliberate, we

are not aware of any opinion holding that a juror who is deemed unfriendly or that does

not participate in "chitchat" conversations with the other jurors during breaks may be

discharged. Although jury deliberations may be most effective when the jurors are

amicable and deliberate with a sense of camaraderie, "jurors can be expected to disagree,

even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and

sometimes heated means." (People v. Johnson (1992) 3 Cal.4th 1183, 1255.) Here, the

other jurors may have concluded that Juror No. 12 was not friendly, but their testimony

revealed she did not "functionally separate[] herself from the rest of the jury," as the




                                             24
Attorney General suggests on appeal.2 During deliberations, one juror faulted her with

rolling her eyes and looking away when other jurors discussed the evidence. Although

this conduct may have heightened the tensions in the jury room, it is not grounds for her

discharge and reveals she continued to listen to the other jurors even if she was not

persuaded by their arguments.

       Considered altogether, the jurors' testimony demonstrates that Juror No. 12

reached an opinion at odds with the other jurors, who grew frustrated when she was

unable to convince them that her opinion was correct and reasonable, refused to accept

their arguments to the contrary, and declined to engage in their attempts to change her

mind by deliberating in a different manner that did not involve consideration of John

Doe's credibility. This is an insufficient basis for discharging a juror. As the Supreme

Court in Cleveland explained, "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 . . . is not a ground for

discharge." (Cleveland, supra, 25 Cal.4th at p. 485.) Accordingly, the trial court abused

its discretion in discharging Juror No. 12.



2      Some jurors suggested that Juror No. 12 occasionally looked at her cell phone
during deliberations. In Armstrong, the Supreme Court suggested that a juror who
repeatedly looks at a book or cell phone during deliberations may be attempting to
separate herself from the other jurors, but "de minimis references to a book and cell
phone do not support a determination that [a juror] was refusing to deliberate."
(Armstrong, supra, 1 Cal.5th at p. 452.) Here, the references to Juror No. 12 looking at
her cell phone were de minimis and the trial court does not appear to have relied on this
testimony to find Juror No. 12 was refusing to deliberate.

                                              25
       The trial court's error in discharging Juror No. 12 warrants reversal.3 (Bowers,

supra, 87 Cal.App.4th at pp. 735-736.) She was the lone holdout juror who consistently

held to her belief Barton was not guilty and, had she remained on the jury, it is

reasonably probable the case would have ended in a mistrial, a more favorable result for

Barton than conviction. (Ibid.) Instead of a mistrial, Barton was convicted within hours

after Juror No. 12 was discharged and the alternate juror joined the jury. There is no

double jeopardy bar to retrial of the case. (Armstrong, supra, 1 Cal.5th at p. 454; citing

People v. Hernandez (2003) 30 Cal.4th 1, 6.)




3      Because we hold that the judgment must be reversed based on the trial court's error
in discharging Juror No. 12, we need not consider Barton's other arguments on appeal in
favor of a reversal.

                                             26
                                  DISPOSITION

      The judgment is reversed.


                                                HUFFMAN, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.




                                      27
