Filed 10/7/13 P. v. Vance CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134605
v.
ANDREW JAMES VANCE,                                                  (Alameda County
                                                                     Super. Ct. No. H43194A)
         Defendant and Appellant.


         In 2010, this court reversed the first-degree murder conviction of Andrew James
Vance because of egregious and pervasive prosecutorial misconduct. (People v. Vance
(2010) 188 Cal.App.4th 1182 (Vance I).) The only other point we addressed, because it
―may arise on trial‖—and it did—was whether certain of defendant‘s post-arrest custodial
statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. We
agreed with the trial court that they were not.
         Defendant was promptly retried, and his statements were again determined to be
admissible, on precisely the same terms as in the first trial. The jury found defendant
guilty of second-degree murder, and he was sentenced to state prison for the term
prescribed by law for that offense.
         Vance presents two claims of error: (1) the trial court erred in concluding that,
notwithstanding finding that some of defendant‘s custodial statements would be excluded
as taken in violation of Miranda, the court did not conclude that all of defendant‘s
subsequent statements were tainted by that violation; and (2) the trial court abused its
discretion when it removed a juror shortly before deliberations commenced. We


                                                             1
conclude that neither of these claims establishes the need for a third trial, and therefore
affirm.
                                       BACKGROUND
          The parties‘ briefs demonstrate that they have no substantive disagreement about
the details of the retrial record, which mirrored that of the original trial. Moreover,
neither of the contentions defendant now advances is dependent on the trial record. We
therefore adopt what we said in Vance I:
          ―Except in one particular, the jury was not presented with material conflicts in the
evidence, only the strength of the incriminating conclusion to be drawn from the largely
undisputed testimony and trial exhibits.
          “It appears accepted that the victim, Dipak (Deuce) Prasad, died on June 2, 2006.
It further seems that it all began with Prasad telling defendant‘s girlfriend, Jennifer
Delong, that he, defendant, was sleeping with another woman. Delong confronted
defendant with this report, and its source, and left town, much to defendant‘s distress.
          ―On the afternoon of June 2, defendant confronted Prasad about what he, Prasad,
had told Delong. Prasad thought what he told defendant had defused defendant‘s anger.
The two thereafter spent several hours getting and consuming methamphetamine, all the
while Prasad unaware that defendant was bent on revenge.
          ―Defendant intended to teach Prasad a lesson with a beating. His friend Kevin
West agreed to assist.[1] Defendant and Prasad met up with West, and, with Prasad
driving his Lexus, they then went to Ronnie Pedrosa‘s auto shop. Pedrosa, who had been
in prison with defendant and West, had also agreed to help with the beating of Prasad.
They all ingested some methamphetamine provided by Prasad. Pedrosa had to beg off
participating in the beating because he had to take care of a friend‘s children.[2] Before


          1
        ―West, who first met defendant while they were both incarcerated, was originally
a codefendant, but prior to trial pleaded guilty to the reduced charge of manslaughter.
West agreed to accept a prison term of three years and to testify at defendant‘s trial.‖
          2
        ―While incarcerated with defendant several months prior to the victim‘s death,
Pedrosa heard defendant say that he wanted to ‗take care of‘ someone, but he did not

                                                2
the group left, and without telling either West or Pedrosa, defendant took some black
plastic ‗zip ties‘ from Pedrosa‘s shop.
       ―Prasad drove defendant and West in Prasad‘s Lexus to a friend‘s house, where
they had more methamphetamine. They then drove to Palomares Canyon, looking for an
address where defendant said they could get more methamphetamine. Palomares Canyon
is located in an area that is not densely populated, and only poorly and intermittently
lighted.[3] The canyon has a creek at its bottom, approximately 75 feet down a steep
incline from Palomares Road. It was about midnight.
       ―Stopping in a driveway, the three got out of the Lexus. Defendant then put
Prasad in a choke hold and rode him down to the ground; this occurred in a period West
estimated as 30 to 90 seconds. According to West, Prasad ‗went limp‘ and began making
snoring sounds. According to both West and defendant, neither of them ever kicked or
punched Prasad, or hit him with any kind of object.
       ―West testified that he and defendant then bound Prasad‘s hands and feet, West
using a shoelace from one of Prasad‘s shoes to ‗tie up‘ his legs; they then put him in the


name the person he meant. After both were released, Pedrosa agreed to let his garage be
used as the ‗place to take care of‘ Prasad, who was not identified as the subject of their
previous conversation. When asked what ‗take care of‘ meant, Pedrosa ventured that it
meant defendant ‗wanted to hurt‘ Prasad. Pedrosa further testified that he did not take
defendant seriously. Defendant testified that he did not know of the victim while he was
incarcerated with Pedrosa, so could not have told Pedrosa that he intended to ‗take care
of‘ Prasad.
        ―According to defendant, he told Pedrosa ‗the same thing I told Kevin‘ about the
justification for the beating. Defendant testified that it was Pedrosa who raised the
possibility of going further than a beating. Defendant rejected this because ‗I didn‘t want
to kill [Prasad], I just wanted to beat him up.‘ His original plan was for the beating to
occur at Pedrosa‘s shop, but this had to be changed ‗because the two little girls were
there.‘ When West suggested at the shop that ‗we hit [Prasad] over the head and put him
in a barrel or something, I told him no, that I didn‘t want to do that because I wasn't
trying to kill him or nothing, I was just trying to scare him.‘
       3
           ―Defendant did admit that it was his idea to take Prasad to Palomares Canyon
because ‗we didn‘t know where we were going to beat him up because we didn‘t want to
do it . . . where somebody would see.‘


                                             3
trunk of the Lexus. Before Prasad was put in the trunk, West heard the sound of adhesive
tape being unrolled. Defendant and West drove a short way to a more isolated part of the
canyon. According to West—who described Prasad as being unconscious but still
snoring—he and defendant threw him down the embankment of the canyon. Defendant
followed this by throwing Prasad‘s shoe, presumably the one from which the lace had
been removed, down the embankment.
          ―Defendant testified that he put Prasad in a headlock for 20 to 30 seconds. He did
not intend to actually choke Prasad, only ‗to restrain him . . . [¶] so Kevin could tie him
up.‘ ‗It was just [a] spur of the moment‘ decision. Defendant did not know that a choke
hold could be life threatening. Defendant let go of Prasad when ‗he wasn't resisting
anymore‘ and ‗started to . . . breathe funny,‘ emitting ‗like a snoring sound.‘ Defendant
thought ‗I just rendered him unconscious,‘ and Prasad ‗just passed out,‘ because he was
breathing and making the snoring sounds.
          ―Defendant‘s version was that his plan was not to take Prasad into Palomares
Canyon to kill him, just to beat him up, and then ‗leave him there, teach him a lesson,‘
and take his car. According to defendant, West was the only one who took tape—black
electrical tape—into Palomares Canyon, and the only one who did any binding of
Prasad‘s hands and feet; it was West who fastened the zip ties on Prasad‘s hands, put his
hands behind his back, and pinioned Prasad‘s feet with ‗black electrical tape and [a]
shoelace.‘ Defendant kept hold of Prasad, whose body was ‗wiggling a little bit.‘ When
he and West took Prasad out of the trunk of the Lexus, Prasad was not moving, but he
was ‗still breathing‘ and ‗still snoring.‘ ‗Then we . . . placed him on the side of the road.‘
Prasad was not thrown into the ravine. And it was West who threw Prasad‘s shoe into the
ravine.
          ―Defendant and West then returned to Pedrosa‘s shop in Prasad‘s Lexus.
According to West, defendant asked if Pedrosa ‗had any tools for digging,‘ and whether
he knew anyone who might want to buy the Lexus. Defendant told Pedrosa that he had
‗choked him [Prasad] out‘ and then ― ‗threw him off the cliff.‘ ‖ Pedrosa was not sure if
defendant was serious or merely bragging. Defendant later told Delong the same thing.


                                               4
Defendant denied making any statement about tools. He did tell Pedrosa and Delong that
he had thrown Prasad over the cliff, but he also told them that Prasad was alive when he
was left in Palomares Canyon.
       ―According to Pedrosa, a day or two later, he and defendant were driving in
Palomares Canyon, and at one point defendant said something to the effect that he
wondered whether Prasad ‗would climb back up from where [defendant] threw him off.‘
Defendant drove the Lexus for several days, and later sold it in Fresno. Although Delong
initially did not believe defendant‘s statement of what he did to Prasad, she came to
believe it when defendant sold the Lexus, and after she received a telephone call from
Prasad‘s sister trying to locate him. That same call apparently started defendant thinking
that Prasad ‗might not be alive anymore‘ because ‗it‘s been so many days and he has not
turned up.‘ At that point defendant ‗was thinking that he might be deceased.‘
       ―Things started unraveling on June 12, when Pedrosa was arrested for a parole
violation, and he raised the subject of Prasad‘s situation in hope of receiving ‗some
consideration.‘ Under police guidance, Pedrosa made a number of recorded telephone
calls to defendant in which defendant indicated awareness that Prasad‘s body was still in
Palomares Canyon, and that the restraining zip ties should be removed. Pedrosa also
arranged a meeting with defendant at which defendant was arrested.
       ―Prasad‘s body was found partially submerged in the creek of Palomares Canyon,
with his hands tied behind his back ‗in an unnatural position‘ with black plastic zip ties.
Both tennis shoes and socks were found nearby. A shoelace from one of the shoes was
found attached to duct tape.
       ―Due to decomposition and/or animal mutilation, forensic pathologist Dr. Thomas
Rogers testified that the cause of death could not be pinpointed. The autopsy revealed no
signs of bone fractures or blunt force trauma on the body. Dr. Rogers further testified a
person can die of asphyxiation from a choke hold minutes after being released, and
during this period the victim may appear unconscious or make noises such as wheezing,
gasping, or snoring. Moreover, the duration of a choke hold resulting in death ‗can be
just a few seconds or it can be upwards to minutes.‘


                                              5
       ―Defendant and West were arrested on June 13. The next day, defendant gave a
lengthy statement to detectives Norton and Kelly, and then a shorter statement to an
assistant district attorney. In his statement, and in his testimony at trial, defendant
admitted that he was angry at Prasad because of what Prasad had told his girlfriend; that
what Prasad said was true, even if motivated by sexual jealousy; that he did put a choke
hold on Prasad; that Prasad was alive when he and West left, and he had no intent to
cause Prasad‘s death; and that he and West left Prasad by the side of the road, and did not
throw him down the embankment.‖ (Vance I, supra, at pp. 1188-1192, some
fns. omitted.)
                                          REVIEW

                 The Trial Court Did Not Err By Refusing To Exclude The
                      Entirety of Defendant’s Post-Arrest Statements

       Our discussion of the Miranda issue in Vance I was as follows:
       ―Only one of the other contentions made by defendant deals with a matter that
may arise on retrial.
       ―Defendant was arrested on June 13. He was first interviewed by officers, and
four and one-half hours later by an assistant district attorney.
       ―Prior to trial, defendant moved to suppress evidence of statements he made in the
two interviews because his statements were elicited in violation of Miranda v. Arizona,
supra, 384 U.S. 436. Following an evidentiary hearing pursuant to Evidence Code
section 402, the court ruled that evidence of an initial interview by officers at the San
Leandro police station on June 13 would be excluded as elicited in violation of Miranda,
but that the second interview by the district attorney would be admissible. Defendant
contends the second interview was tainted by the first because his invocation of his right
to silence was ignored, and the statement was involuntarily induced by an improper
promise of leniency. The contention is without merit.




                                              6
      ―Defendant was arrested at approximately 4:00 p.m. His videotaped interview
with Officers Norton and Kelly began about 70 minutes later. After some orienting
preliminaries, the following occurred:
      ― ‗NORTON: All right first of all you have the right to remain silent. Do you
understand that?
      ― ‗VANCE: Yeah.
      ― ‗NORTON: Anything you say can and will be used against you in a court of
law. Do you understand that?
      ― ‗VANCE: Yep.
      ― ‗NORTON: Uh, you have the right to talk to a lawyer and have him present
while you are being questioned. Do you understand that?
      ― ‗VANCE: Yep.
      ― ‗NORTON: If you cannot afford to hire an attorney, one will be appointed to
represent you free of charge before any questioning if you wish one. Do you understand
each of these rights I have explained to you?
      ― ‗VANCE: Yeah.
      ― ‗NORTON: Okay, why don‘t you tell me your side of the story?
      ― ‗VANCE: I don‘t have a side of the story.
      ― ‗KELLY: We just found Deuce‘s body in the creek in Palomares. His
decomposed body. Alright, and we have already finished interviewing four different
people, and we know what time it is.
      ― ‗NORTON: Here is your opportunity to sit with us and tell us exactly what
happened, because, like Ray said, we have already talked to a couple of different other
people, we have already got Deuce‘s body, and we know what time it is. We need to
hear exactly what happened from your perspective, why it happened, what motivated
you, you know what I mean? What really happened, you know . . .
      ― ‗KELLY: It was probably an accident or something bad happened. I don‘t
know, but we need to find out.



                                            7
       ― ‗NORTON: But you just sitting here saying you don‘t know what we are talking
about when we know you do. You know what I mean. You need to be honest with us, be
honest with yourself. What happened?
       ― ‗KELLY: Did you drive out with Deuce and Kevin West out to into Palomares?
That‘s a yes or no, dude? We just . . .
       ― ‗NORTON: Are you not going to talk to us, is that what you are doing?
       ― ‗VANCE: No, I‘m talking to you guys.
       ― ‗NORTON: It‘s a simple question. Did you drive out there with Deuce and
Kevin?
       ― ‗KELLY: Look, dude, we‘re not here to . . . we just want to find the truth out,
alright? We just want to hear your side of the story, how things went down, okay? We
know Deuce is dead. That‘s fine, okay, and we are not sitting here saying you‘re some
kind of crazy serial killer or something like that. Some bad shit happened. We just want
to figure out what happened so we can tell Deuce‘s family, okay? Alright dude, we don‘t
think anything of you, we‘re not here to judge you. We know it wasn‘t supposed to go
down that way and it did you know what I mean. Something went down. It wasn‘t
supposed to go that way, but it happened, bro, and now we have to get to the bottom of it,
figure this shit out man, you know? I know you are upset man, but let‘s get through this
together all right? We‘re not here to fuck with you, man.
       ― ‗NORTON: It takes a big man to be honest all right and I know you have that in
you all right. It takes a big man to be honest.
       ― ‗[VANCE begins crying.]
       ― ‗KELLY: Dude, it‘s okay, bro, alright. It‘s alright, bro. We‘re not here to mess
with you, all right. We are here to listen and then to help you out.
       ― ‗VANCE: (crying) That‘s what everybody always tells me and then I end up
getting fucked.
       ― ‗KELLY: Well, we‘re not here to do that bro, we‘re just here to find out the
truth about what happened. And I think you have a lot on your chest right now, and I
think you need to talk about this, I know you want to talk about this.


                                              8
       ― ‗NORTON: This has been weighing on you for the last two weeks.
       ― ‗KELLY: The last two weeks have been fucked.
       ― ‗NORTON: Tell us what happened. Come on Drew, what happened, buddy.
       ― ‗KELLY: Keep it real with us Drew. Man we‘re not going to sit here and judge
you, buddy.
       ― ‗VANCE: (crying) It doesn‘t matter anyway I‘m just going to go to prison and
rot and never come out of there.
       ― ‗NORTON: Drew, this is the thing, buddy. We need to know your side of the
story. We need to know what happened. What happened out there, Drew? Tell us what
happened out there.
       ― ‗VANCE: It was an accident.‖
       All of this took four minutes.[4]
       ―Approximately three and one-half minutes later, Norton asked, ‗What happened
once you guys got there, Andrew?‘ Defendant replied, ‗I don‘t want to talk about it.‘
When, approximately four minutes later, Norton again asked, ‗So what happened when
you guys . . . got out there Andrew?‘ defendant responded, ‗I don't want to talk about it.
I'm just a bad person.‘
       ―The trial court ordered evidence of this interview excluded, but stated, ‗my ruling
is very limited. I‘m going to find that there was not a valid waiver of Miranda in this
case.‘ The court further found that defendant had not invoked his right to silence under
the Fifth Amendment or his right to counsel under the Sixth Amendment. The court then
reiterated that ‗The sole basis of exclusion is that I do not find, once again, that there was
a clear waiver of his Fifth Amendment right[ ] and that is why I‘m excluding it.‘ The
court rejected defendant‘s arguments that the district attorney interview was tainted by
the first interview, and likewise was not preceded by an effective waiver.
       ― ‗In reviewing Miranda issues on appeal, we accept the trial court‘s resolution of
disputed facts and inferences as well as its evaluations of credibility if substantially

       4
           ―As measured by the timer on the videotape, which we have watched.‖


                                              9
supported, but independently determine from the undisputed facts and facts found by the
trial court whether the challenged statement was legally obtained.‘ (People v. Smith
(2007) 40 Cal.4th 483, 502.) Whether defendant invoked his rights under Miranda is a
question of fact to be resolved on the basis of the totality of the circumstances. (People v.
Musselwhite (1998) 17 Cal.4th 1216, 1238; People v. Hayes (1985) 38 Cal.3d 780,
784-785.) Defendant contends his ‗I don‘t have a side of the story‘ and ‗I don‘t want to
talk about it‘ statements must be treated as invocations of his Miranda rights.
       ―But invocations cannot be equivocal or ambiguous. (Berghuis v. Thompkins
(2010) 560 U.S. 370, 130 S.Ct. 2250, 2259–2260, see People v. Crittenden (1994)
9 Cal.4th 83, 129 [‗we apply federal standards in reviewing a defendant‘s claim that his
or her statements were elicited in violation of Miranda‘].) Having viewed the tape, and
reviewed the testimony given in connection with defendant‘s suppression motion, we
conclude that there is substantial evidence from the totality of the circumstances
supporting the trial court‘s implicit finding that neither statement constituted an
unequivocal invocation.
       ―Although the premise of Miranda is that custodial interrogation is deemed
inherently coercive (e.g., United States v. Patane (2004) 542 U.S. 630, 639), defendant
was hardly a terrified novice. When the interview session started, even before the
Miranda warnings were given, defendant was asking whether he could speak with
another officer with whom he had had prior dealings. He faults the officers for not
asking questions to clarify whether he was invoking his rights, but they did precisely that:
when Norton early on asked, ‗Are you not going to talk to us, is that what you are doing?‘
defendant replied, ‗No, I‘m talking to you guys.‘ Defendant‘s ‗I don‘t have a side of the
story‘ statement strikes us as, at best, inherently ambiguous. It obviously could mean that
he had no explanation (‗story‘) that was exculpatory.
       ―Defendant‘s claim that his first statement was the product of the officers‘ implied
promise of ‗help‘—which defendant equates with leniency—is to be reviewed according
to well-established standards: ‗The federal and state Constitutions both bar the use of
involuntary confessions against a criminal defendant. [Citations.] A confession is


                                             10
involuntary if it is ―not ‗ ―the product of a rational intellect and a free will‖ ‘ ‖ [citation],
such that the defendant‘s ―will was overborne at the time he confessed.‖ [Citation.] In
assessing allegedly coercive police tactics, ―[t]he courts have prohibited only those
psychological ploys which, under all the circumstances, are so coercive that they tend to
produce a statement that is both involuntary and unreliable.‖ [Citation.] Whether a
statement is voluntary depends upon the totality of the circumstances surrounding the
interrogation.‖ (People v. Smith, supra, 40 Cal.4th 483, 501.) ‗ ―The question posed . . .
in cases of claimed psychological coercion is whether the influences brought to bear upon
the accused were ‗such as to overbear petitioner‘s will to resist and bring about
confessions not freely self-determined.‘ [Citation.]‖ [Citation.]‘ (People v. Thompson
(1990) 50 Cal.3d 134, 166.)
       ―Concededly, defendant was crying during the first 10–15 minutes, prompting one
of the officers to urge defendant to ‗Take a couple of deep breaths and try to compose
yourself.‘ It worked, if only temporarily. Defendant resumed crying when confronted
with a picture of the victim. While defendant reads an implied promise of leniency into
Officer Kelly‘s statement that ‗we are here to listen and then to help you out,‘ and Officer
Norton‘s statement that ‗the court . . . wants to know what the real story is and you‘re the
only one that can provide that,‘ our review of the videotape reveals that the only benefits
promised by the officers was the peace of mind defendant and others would have after he
did the right thing and gave his side of the story. That is not coercion. (E.g., People v.
Williams (2010) 49 Cal.4th 405, 444; People v. Boyde (1988) 46 Cal.3d 212, 238 [‗Mere
advice or exhortation by the police that it would be better for the accused to tell the truth,
when unaccompanied by either a threat or a promise, does not . . . make a subsequent
confession involuntary‘]; People v. Jimenez (1978) 21 Cal.3d 595, 611–612 [‗ ―[when]
the benefit pointed out by the police to a suspect is merely that which flows naturally
from a truthful and honest course of conduct,‖ the subsequent statement will not be
considered involuntarily made‘]; People v. Andersen (1980) 101 Cal.App.3d 563, 578.)
The brief and bland references upon which defendant has seized do not push this case
over the forbidden line of promised threats or vowed leniency (see People v. Ray (1996)


                                               11
13 Cal.4th 313, 340), certainly not within the context of an interview that lasted more
than three hours.
       ―Certainly defendant experienced stress. It may have been realization of the
seriousness of his situation, or remorse at what he had done.[5] Defendant‘s repeated and
resigned expressions that ―in the end it really doesn‘t matter,‘ and ‗What does it matter
I‘m . . . going to prison for the rest of my life,‘ betrays a deep pessimism about the
criminal justice system. Even if defendant in good faith was insisting that he left Prasad
alive, he was now confronted with the reality that the choking of Prasad had led to his
death. Undoubtedly, officers Norton and Kelly used planned techniques, interrogation
ploys, and even mock flattery (‗It takes a big man to be honest,‘ ‗You‘re doing the right
thing. I'm proud of you,‘ ‗you were very honest with us‘), during the course of the
interview. Yet, there are long periods of unforced lucidity by defendant. If defendant is
not particularly forthcoming with volunteered details, he nevertheless follows questions
posed, and generally provides answers, even if the question has to be reiterated. The
questioning is insistent, but not intrusive or overbearing. There is a break of almost
40 minutes when defendant is left alone in the interview room. Defendant‘s body
language was not cowering. Defendant was wearing handcuffs only until the interview
was about to begin, when they were removed. He was able to assert himself and
challenge the logic of the officers assumption, i.e., ‗I don‘t care what you think,‘ ‗what I
think you‘re doing right now, you‘re analyzing too much,‘ ‗I don't care if you believe me


       5
         ―When initially offered a photograph of the victim, defendant insisted that ‗I
don't want to see him, please don't show it to me.‘ When later forced to look at the
photograph, defendant once more broke down in tears, insisting, ‗I don‘t want to be alive
no more.‘ And even later in the interview, when Officer Norton made reference to the
photograph of Prasad, defendant insisted, ‗I don‘t want to see it again.‘ At that point
Officer Kelly bluntly told defendant that Prasad ‗died at the hands of another and those
hands were yours, and you have to face up to that, you killed another human being, you
killed somebody,‘ and then Prasad‘s ‗family that‘s never going to see him again, they
don‘t even know yet . . . that he‘s dead . . . . What am I going to tell his mother cause
him [Norton] and I are going to tell his mother. What do we tell her? Give me an idea,
here, man. You know how hard that is to do?‘ ‖


                                             12
or not.‘ And, ultimately, the officers failed on the crucial point—defendant doggedly
insisted Prasad was alive when he left, and he adamantly denied that he pushed Prasad off
the road and down the canyon ravine.
       ―Granted, defendant made statements after June 2 that were recorded, and which
will bear an incriminating inference. The general import of the statements is that a week
after June 6—after he knew that Prasad was thought missing by his family, who were
trying to locate him—defendant either assumed or knew that Prasad‘s body was still in
Palomares Canyon, and that it would have the zip ties which should be removed.
However, the inference that defendant now knew Prasad was dead, is still not
inconsistent with the defense theory that there was no murderous intent on the night of
June 2. In other words, defendant could have concluded that his actions did result in
Prasad‘s death, but this does not demonstrate that the death was intentional.
       ―In light of the foregoing, we conclude the trial court‘s pretrial ruling cannot be
overturned on the basis of the record as it now exists. However, in the event of a retrial,
the trial court is at liberty to reexamine this ruling in light of any new information that
may be brought to its attention.‖ (Vance I, supra, at pp. 1207-1214.)
       In advance of the retrial, defendant again moved to suppress all evidence of his
custodial statements. The trial court conducted a brief evidentiary hearing and, in plain
effect, consciously reiterated the same ruling made at the first trial—evidence from the
initial interview would be excluded under Miranda, but evidence from the second
interview could be used because ―it wasn‘t tainted‖ by the Miranda violation. Just as he
did on the first appeal, defendant contends that, given the conceded Miranda violation,
exclusion of the ensuing statement is logically required. We do not agree, both on the
merits, and by reason of a rarely applied appellate principle.
       The idea of the doctrine of the law of the case was first mentioned by counsel in
preparation for the suppression hearing following our reversal in Vance I. After
reviewing the transcript of the ensuing hearing, the possibility of applying the doctrine
appeared sufficiently well-grounded that we had counsel provide supplemental briefing
on the issue.


                                              13
       Simply put, the doctrine of the law of the case provides that once an appellate
court passes upon an issue, its decision on that issue remains binding throughout
subsequent proceedings. The classic modern formulation of the doctrine is in People v.
Shuey (1975) 13 Cal.3d 835, 841: ― ‗[W]here an appellate court states a rule of laws
necessary to its decision , such rule ― ‗must be adhered to‘ ‖ in any ― ‗subsequent
appeal‘ ‖ in the same case, even where the former decision appears to be
― ‗erroneous.‘ ‖ ‘ ‖ (People v. Whitt (1990) 51 Cal.3d 620, 638, quoting Shuey.) ―Thus,
the law-of-the-case doctrine ‗prevents the parties from seeking appellate reconsideration
of an already decided issue in the same case absent some significant change in
circumstances.‘ ‖ (People v. Boyer (2006) 38 Cal.4th 412, 441, quoting People v. Whitt,
supra, at p. 638.) Moreover, ― ‗[a] decision on a matter properly presented on prior
appeal becomes the law of the case even though it may not have been absolutely
necessary to the determination of the question whether the judgment appealed from
should be reversed. [Citations.]‘ [Citation.] Thus, application of the law-of-the-case
doctrine is appropriate where an issue presented and decided in the prior appeal, even if
not essential to the appellate disposition, ‗was proper as a guide to the court below on a
new trial.‘ [Citation.]‖ (People v. Boyer, supra, at p. 442.)
       ―On the other hand, the law-of-the-case doctrine governs only the principles of
law laid down by an appellate court, as applicable to a retrial of fact, and controls the
outcome on retrial only to the extent the evidence is substantially the same.‖ (People v.
Boyer, supra, 38 Cal.4th 412, 442.) ―Where, on remand, ‗there is a substantial difference
in the evidence to which the [announced] principle of law is applied, . . . the [doctrine]
may not be invoked.‘ ‖ (People v. Barragan (2004) 32 Cal.4th 236, 246.)
       The records of the two suppression hearings are not identical. Only Officer
Norton testified at the first hearing, and only Officer Kelly testified at the second.
However, Officer Kelly testified that defendant‘s ―entire interaction with myself and
Sergeant Norton and the members of the District Attorney‘s Office was all recorded. The
only time it was recorded was when he left that room and then was subsequently
transported to jail.‖ In other words, the only relevant evidence is the tape. We watched


                                              14
that tape on Vance I (see fn. 4, ante) and the trial court watched it at the second
suppression hearing.
       Thus, the relevant evidence is indeed ―substantially the same.‖ (People v. Boyer,
supra, 38 Cal.4th 412, 442.) Although the trial court was inclined to conclude that no
Miranda violation occurred at the first interview, it took some pains to make sure that its
ruling conformed to the earlier ruling. So, the second ruling, based on virtually the same
evidence as the first, is in effect the same one we reviewed on Vance I. It is therefore
covered by the law of the case we articulated in our prior opinion.
       And as a separate and independent ground for rejecting defendant‘s contention,
our second viewing of the tape produces the same conclusion we reached in Vance I:
there was no error, including no coercion, the contention belatedly made by Vance here.

                       The Trial Court Did Not Abuse Its Discretion
                                When It Removed A Juror

       On the final day of testimony, after the lunch recess and out of the jury‘s presence,
the court addressed counsel with a matter about one of the jurors. Because the
information came from Erin Osanna, a ―victim witness person‖ for the District Attorney‘s
office, the court asked the prosecutor to ―put it on the record.‖ The prosecutor
responded:
       ―Ms. Osanna was standing outside the courtroom, in the main hallway, . . . along
with Geeta Devi.[6] While they were outside, they saw the husband of one of our jurors
walk out of the courtroom . . . . [¶] . . . [¶] As Ms. Osanna was outside with Ms. Devi, the
husband of this juror was approached by the gentleman seated in the courtroom right now
with the sunglasses on his head. He‘s wearing a black T-shirt. He has sleeved tattoos on
his arm. He has a goatee.‖
       The man was identified as Robert Garris, the fiancé of defendant‘s mother, who
told the court ―We just asked how his [the juror‘s] son was doing.‖ The court stated, ―So,


       6
           Who was the victim‘s sister.


                                             15
Mr. Garris has acknowledged to the Court he had contact with the husband of the juror,
and apparently it was—they had some baseball or family connection.‖
       The prosecutor then resumed his narrative: ―At that point, the juror—I believe it‘s
Juror No. 5[7] . . . came out of the jury room and approached her husband, and there was
some kind of acknowledgement between Mr. Garris [and] her husband. The three of
them had an acknowledgement of knowing each other. Then they walked toward the
elevator bay together. Ms. Osanna did not hear the extent of the conversation, but she did
see the three of them walking towards the elevator. What she did hear was Mr. Garris
say that he is the defendant‘s stepfather.‖
       Ms. Osanna then took the stand and briefly (one paragraph in the reporter‘s
transcript) verified the prosecutor‘s narrative. Defendant‘s counsel declined to examine
Ms. Osanna. The following then occurred:
       ―THE COURT: . . . [¶] . . . [¶] Now I‘ve heard the information. Mr. Garris, no
one is saying you did anything intentional, because it appears to me what happened here
was somewhat inadvertent. The juror‘s husband had actually been here—this is probably
his third day, at least here in the courtroom. However, I have to take a look at this case
from the standpoint—this case has been mistried once. There‘s been a reversal on this
case. And I‘m very cautious whenever we have incidents where there‘s contact with
jurors, juror‘s family, even though it may be inadvertent. But it‘s too important to both
sides to get a fair trial, and the actual perception that, in fact, people are being treated
fairly and there‘s nothing that may disturb the process of deliberations. Now,
potentially—I don‘t know. We have a potential [for] . . . communications potentially
with a witness. I don‘t know if you were going to call Mr. Garris later on. I don‘t know




       7
         As will be seen, the excused juror is sometimes identified as ―Juror No. 23.‖ The
Attorney General explains ―the discharged juror was juror number 23, in jury slot five.‖
This seems logical, so, to avoid confusion, for purposes of simplicity, all references to the
juror will identify him/her as ―Juror No. 5.‖ In any event, there is no dispute that it was
the juror who was removed and whose removal is now challenged by defendant.


                                               16
what the relationship—the juror—I don‘t know what happened there. We might have
communications with a third party in the case.
       ―People live in relationships. People talk. And I‘m not certain if it‘s not going to
happen, whether sitting at the table and they begin deliberations, that Juror No. 5 and her
husband start talking about the influence and the impact that relationship may have. And
the fact that you have told us there‘s this contact where the kids have played baseball
together and they know and acknowledge each other, that‘s more than slight. So I think
that you‘ve got a setting where there‘s potential for bias or prejudgment of the case or
prejudice against one party. You potentially have the consulting of extraneous materials,
i.e., maybe a discussion, like I said, with the spouse about information that he may have
obtained about the background of the family. I mean, there are many potential issues as it
relates to that. And I don‘t know if she knew—the actual juror knows Christopher‘s
mom‘s fiancé. I don‘t know. But that—there‘s just too many things going on here. And
although I say that‘s probably inadvertent, because I‘m not certain—I‘m not saying that
Mr. Garris did anything intentionally. But the jury has been exposed to information that
other jurors would normally not have been exposed to, and I—under these circumstances,
I make a finding that there‘s good cause here, and I am going to excuse Juror No. 5. I‘m
going to ask her to be brought out, Madam Clerk, so I can talk with her in this matter.
       ―Counsel, you want to make a record? Is there anything else you want to say?
       ―MR. INFANTE [the prosecutor]: I‘m going to ask Mr. Garris be barred from the
courtroom for the rest of the trial. This is the second time this has happened, where‘s
he‘s had contact with someone in connection with the trial. We had Mr. Pedrosa‘s
testimony about Mr. Garris calling him a snitch outside this courtroom, and now we have
this contact. He‘s poisoned the well at this joint, now he knows that his contact—if he
contacts a juror, that the juror will be kicked off. And if he knows the consequences of
that, he can continue to contact jurors at will at this point. I‘m asking that he be barred
for the pendency of this trial. I know this is an open proceeding and I know the law has
very strict limitations on who can be banned from courtrooms because this is an open and
public hearing, but at this point, Mr. Garris has crossed the line twice in trying to


                                             17
somehow connect himself to participants or influence participants, specifically
Mr. Pedrosa. So I believe he should be barred for the rest of the trial.
       ―THE COURT: All right. You motion—your request has been heard and it‘s
denied. I don‘t think he intentionally did anything. And you know, Mr. Garris—I‘ve
told you, look, anything else even slight, you‘re going to be out of this courtroom,
because there will be enough taint. Under the circumstances, as Ms. Osanna testified, I
don‘t think it was intentional. I think it was inadvertent in respects. But the information
that—the fact that the husband of the juror knows that you are—the defendant is [your]
potential stepson or the fact that his wife is there, walked with each other going to the
elevator, that‘s too much to bear.
       ―So Mr. Mann, would you like to be heard?
       ―MR. MANN [defense counsel]: Well, not on that issue, but I do have a request,
your Honor, that in light of your Honor‘s indication that you are inclined to or planning
to excuse this particular juror who is involved in this issue, I don‘t believe that is
appropriate unless and until the juror himself herself was questioned and she indicated
that there was some sort of inappropriate contact or discussion about the case or
perceived threat or anything of that nature, because I think that what we have here is what
Mr. Garris said, was that he said hello to the man he recognized, and while he was
speaking to him out in the hallway, a nonjuror, that juror‘s wife, came out and joined
them on her own volition. And unless there was some inappropriate contact thereafter, I
don‘t think that that would be just cause to relieve this juror and I would object.
       ―THE COURT: Well, I have two contacts. I have one coming out of the hallway
and the introduction saying this is the defendant‘s stepfather, whatever, and then I get
them walking out together in the elevator together. Now, that‘s more than just casual
contact. But I‘m going to bring her out and I‘m going to—I will question her to the
extent you think you need to. But there‘s no question in my mind. I‘m not going to
allow this type of conduct, even if it‘s inadvertent and to the extent that we have
discussions going on with parties to the case that have a self-interest. So let‘s have her
come out. That‘s Juror No. 5.


                                              18
       ―(Pause.)
       ―THE COURT: My Juror No. 5.
       ―JUROR NO. 5: Hello.
       ―THE COURT: I brought you in here because it‘d been brought to the Court‘s
attention that apparently your husband knows and has had contact this morning with the
defendant‘s mother. And, actually, I guess they‘re engaged.
       ―JUROR NO. 5: Not with the mother.
       ―THE COURT: Not with the mother, but with the stepfather, the gentleman who
is—
       ―JUROR NO. 5: Yeah. I just found out today that Mr. Vance‘s stepfather is the
father of one of my son‘s—they were on the baseball together last year.
       ―THE COURT: Right. And I understand that you were introduced and you
walked out to the elevator together.
       ―JUROR NO. 5: Yeah. We did not discuss anything about the case, but yes.
       ―THE COURT: Mr. Infante, you have some questions?
       MR. INFANTE: Actually, I have no questions.
       ―THE COURT: Mr. Mann.
       ―MR. MANN: No. I‘ll submit it, Judge.
       ―THE COURT: So what I‘m going to do—we want to keep this, as I talked about,
fair and impartial. You‘re shaking your head. And the relationship, I think, with the
contact with your husband and the gentleman as well as your acknowledgement, I think it
puts you in a very difficult position.
       ―JUUOR NO. 5: Yes.
       ―THE COURT: Because some people, you share information and relationships.
       ―JUROR NO. 5: Yes.
       ―THE COURT: You‘re acknowledging, and I appreciate that. I really do.
Unfortunately, I‘m going to have to excuse you from this jury.
       ―JUROR NO. 5: Okay. Thank you.
       ―THE COURT: It‘s . . . nothing you did personally.


                                           19
       ―JUROR NO. 5: No.
       ―THE COURT: And I know that you would do your best, but I know it would be
very difficult for you in deliberations.
       ―JUROR NO. 5: Yes.
       ―THE COURT: Yes, it would be very difficult for you?
       ―JUROR NO. 5: Yes. Well, it wouldn‘t affect my decision in any way, but, you
know, I don‘t want to affect the outcome of this, you know, after going this far.
       ―THE COURT: Sure. Well, the outside—the extraneous information issues that
could come up—I mean, we never know what‘s going to happen, and we want to prevent
that from happening.
       ―JUROR NO. 5: All right.‖
       After Juror No. 5 apparently left the courtroom, defense counsel was allowed to
―make a record‖ as follows:
       ―MR. MANN: Based upon what Juror No. 5 has just indicated, that there was no
discussion about the case between she and Mr. Garris or her husband, and her final
statement just now she volunteered that this would not—this contact would not affect my
opinion in any way in this case if I was to sit as a juror, I think based upon that—
       ―THE COURT: She didn‘t just say that. After—she acknowledged that she in
fact—the information could in some way have an impact, although she said—she shook
her head. She say, yes, there might be some issues. She continued to shake her head
during the whole course of the discussion. But go ahead
       ―MR. MANN: I heard her differently. I thought she said it would not affect her
ability to be fair, but I—but she understood the Court‘s rationale. I think, based upon her
responses, that there is no good cause to remove this juror from service at this point, and I
would object and argue that that violates Mr. Vance‘s right to have a jury of his peers, his
due process rights in both the state and federal constitution[s], including the 14th
Amendment, and I would—if the Court is going to do this, I‘m moving for a mistrial at
this point. I think it‘s—there‘s insufficient basis to remove this juror and . . . I‘ll submit
it on that basis, Judge.


                                              20
       ―THE COURT: Mr. Infante.
       ―MR. INFANTE: I think what we heard just from the juror just now is she
acknowledged that she wanted to make sure that this trial was fair, and she also
acknowledged that that kind of contact may have some kind of effect on the trial. She
said she wanted to make sure everything was fair, we have come this far. So I think she
has acknowledged on her own on the record that any kind of contact can lend impropriety
to the proceedings. And while she said she could be fair, and acknowledged the more
underlying issues that any kind of taint or any kind of hint of impropriety would be
improper, and that would actually affect Mr. Vance‘s rights to a fair trial more than
excusing her. And additionally, we do have two alternate jurors who were picked by
both Mr. Mann and myself so that Mr. Vance still has a jury of his peers as selected by
both the People and the defense, so there would be no violation in that regard.
       ―THE COURT: Mr. Mann, I think the operative words she said, we‘ve come this
far, I don‘t want to have—cause anything to happen. Her statement is, she found—I
found out today that Mr. Vance‘s stepfather is the father of one of my son‘s—they were
on the baseball team together last year. She knows that this person who‘s had a
relationship—Mr. Vance‘s stepfather—or not stepfather, but he‘s—that‘s what she
named him, as the stepfather. That her husband and him and their children have played
baseball together. She readily shakes her head yes on everything the Court said as I had
the discussion. And, you know, there are two alternates, and I am not going to have this
case—based upon the prior conducts we‘ve had in this case, the—even the record that
we‘ve had some other witnesses accused Mr. Garris, the gentleman, of contact and
calling him a snitch. I‘m not certain whether or not that happened the way it happened,
but there‘s enough incidental contacts going on in this case with witnesses and jurors that
the Court is not going to take the chance. It‘s very clear to me that this case could be
disturbed by outside influence based upon these contacts and communications that
occurred during the course and scope of this trial so far.
       ―So based upon that, I‘m going to deny your motion, Mr. Mann. Your motion for
a mistrial is denied. I am going to substitute in—Juror No. 45 will replace Juror No. 5.‖


                                             21
The change was made and the jury told ―not to speculate about the reason‖ for the
change.
       ―If, at any time, whether before or after the final submission of the case to the jury,
a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or
her duty, . . . the court may order the juror to be discharged and draw the name of an
alternate, who shall then take a place in the jury box . . . .‖ (Pen. Code, § 1089
(section 1089).) ―[A] juror‘s inability to perform as a juror must be shown as a
‗demonstrable reality‘ [citation], which requires a ‗stronger evidentiary showing than
mere substantial evidence‘ [citation].‖ (People v. Wilson (2008) 44 Cal.4th 758, 821.)
―The demonstrable reality test entails a more comprehensive and less deferential review.
It requires a showing that the court as trier of fact did rely on evidence that, in light of the
entire record, supports its conclusion that [good cause] was established. It is important to
make clear that a reviewing court does not reweigh the evidence . . . . Under the
demonstrable reality standard, . . . the reviewing court must be confident that the trial
court‘s conclusion is manifestly supported by the evidence on which the court actually
relied.‖ (People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053.)
       Defendant contends that the trial court‘s removal of Juror No. 5 cannot satisfy this
stringent standard. He argues that the brief exchange between his ―mother‘s boyfriend‖
and Juror No. 5 fails to establish either actual bias or inability to continue serving. We do
not agree.
       No one disputes that social interactions or relationships between a juror and a
relative of the defendant qualifies as cause for removal under section 1089. (E.g.,
People v. Abbott (1956) 47 Cal.2d 363 [juror worked in same office as defendant‘s
brother, their desks 25 feet apart]; People v. Taylor (1961) 189 Cal.App.2d 490 [juror
worked with defendant‘s father for 12 years and lived next door to defendant‘s sister].)
Nor is it controversial that knowledge of such a relationship can become known after trial
has commenced. (People v. Abbott, supra, at p. 370 [juror excused on 11th day of trial].)
       A juror‘s professed willingness to serve impartially can be overcome by behavior
and demeanor noted by the trial court. (See People v. Zamudio (2008) 43 Cal.4th 327,


                                              22
349; People v. Lucas (1995) 12 Cal.4th 415, 489.) Assessment of equivocal or
conflicting statements by a juror is usually left to the trial court. (See People v. Jones
(2012) 54 Cal.4th 1, 43; People v. Riggs (2008) 44 Cal.4th 248, 282.) Here, we have
conflicting answers from Juror No. 5 as to whether ―the contact with your husband and
the gentleman . . . puts you in a very difficult position.‖ Twice she said that it would, but
then appeared to backtrack with ―it wouldn‘t affect my decision in any way.‖ The trial
court was obviously also taking account of body language and demeanor, noting that
―She didn‘t just say that . . . she shook her head . . . . She continued to shake her head
during the whole course of the discussion,‖ ―She readily shakes her head yes on
everything the Court said as I had the discussion.‖ These intangibles are to be accounted
in favor the court‘s decision: ―The trial court was in the best position to assess the juror‘s
state of mind, her demeanor, her vocal inflection and other nonverbal cues. ‗Even when
―[t]he precise wording of the question asked of [the juror] and the answer [she] gave do
not by themselves compel [exclusion], the need to defer to the trial court remains because
so much may turn on . . . demeanor.‖ ‘ ‖ (People v. Wilson, supra, 44 Cal.4th 758 at
p. 780, quoting Uttecht v. Brown (2007) 551 U.S. 1, 8.)
       Lurking in the background was the fear that any vulnerability or susceptibility
would be exploited by the defense. The trial court took pains to avoid a flat accusation of
intentional impropriety by Mr. Garris, but it was clearly concerned that, with this second
incident, inadvertence was losing credibility (―It‘s very clear to me that this case could be
disturbed by outside influence‖). And, of course, we are proceeding on the predicate that
the court had already concluded that Juror No. 5‘s impartiality had been compromised.
That conclusion appears as a demonstrable reality.
                                      DISPOSITION
       The judgment of conviction is affirmed.




                                             23
                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




                            24
