Filed 3/26/15 P. v. Salazar CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066882

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FBA900513)

JUAN CARLOS SALAZAR,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Victor R. Stull, Judge. Reversed.

         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,

Assistant Attorneys General, William M. Wood and Brendon W. Marshall, Deputy

Attorneys General, for Plaintiff and Respondent.
       A jury convicted Juan Carlos Salazar of nine counts of lewd acts on a child under

the age of 14 (Pen. Code, § 288, subd. (a)), and found true allegations that as to counts 1

through 7, there was more than one victim (Pen. Code, § 667.61, subd. (b)). The court

sentenced defendant to 58 years to life in state prison, consisting of consecutive

indeterminate 15-year-to-life terms on counts 1, 2 and 7, a determinate low term of three

years for count 3, and determinate consecutive two-year terms (one-third the midterm)

for counts 4, 5, 6, 8 and 9. Defendant contends the trial court abused its discretion in

dismissing one of the jurors, Juror No. 3, during the deliberations because the record does

not establish as a demonstrable reality that she refused to deliberate or was unable to

perform her duties as a juror. He also contends the court's admission under Evidence

Code section 1108 of evidence of his uncharged sexual misconduct violated his right to

due process under the state and federal constitutions and equal protection of the law,

requiring that the judgment be reversed.

       Because grounds for Juror No. 3's discharge do not appear in this record as a

demonstrable reality, and the trial court's findings are not manifestly supported by the

evidence, we conclude the court erred by dismissing Juror No. 3. We reverse the

judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Defendant does not advance a sufficiency of the evidence challenge, so we briefly

summarize the acts underlying his convictions.

       Sometime before 2006, defendant lived with a woman and her children, including

Michelle, who was 19 years old at the time of trial, and Mark, who was a year and 10

                                             2
months younger than Michelle. Defendant worked as an 18-wheeler truck driver and

sometimes took Michelle and Mark with him on deliveries or other places in their

mother's van. Michelle estimated that at various times when she was between 11 and 15

years old, defendant told her to masturbate him. On one occasion, he gave Michelle and

Mark alcohol to drink then asked Michelle if he could pay her to have intercourse with

him. When she declined, he offered her $20 to masturbate him, which she did. On

another occasion, defendant made Michelle and Mark watch pornography with him at

their house while he masturbated to it. Defendant had Michelle orally copulate him once.

On another occasion, defendant entered Michelle's bedroom and put his penis close to her

face. Another time in his truck, defendant also made Michelle and Mark orally copulate

each other while he watched.

       The prosecution presented the testimony of defendant's daughter Yadira under

Evidence Code section 1108. Yadira testified that in 2000, when she was 13 years old,

defendant took her into a bedroom of their home, removed his penis from his pants and

asked her a couple of times to touch it. Yadira said no and ran from the room. Yadira

told her mother about the incident three years later, and in 2009, Yadira gave a statement

to police.

       Defendant testified at trial, and denied the acts. He claimed had had given Yadira

a condom after catching her with a boy in her bedroom. He claimed that in 2008, when

the allegations about Michelle and Mark arose, he had left their mother and was seeking

custody of his other two girls from her. He made the same claim about Yadira; that in

2003 he was asking for custody of his children from her mother.

                                            3
                                       DISCUSSION

                                I. Dismissal of Juror No. 3

       Defendant contends the trial court erred by dismissing one of the jurors, Juror No.

3, during their deliberations based only on an inquiry of the jury foreperson and Juror No.

3, and no other jurors. He maintains the court's insufficient inquiry, combined with its

misinterpretation about the scope of its discretion, led to an arbitrary and capricious

decision, constituting an abuse of discretion.

A. Background

       The jury commenced deliberations shortly after about 9:00 a.m. on August 14,

2012. After it reassembled the next day, the jury asked for a read-back of Michelle and

Mark's testimony. Deliberations resumed on and off throughout the day, and the read-

back was completed by 3:40 p.m., after which the jury left for the day. Just after 11:00

a.m. on the third day of deliberations, the jury foreperson sent a note to the judge

indicating that one of the jurors, Juror No. 3, was "not cooperating, wants to leave,

making people feel uncomfortable. She is sitting in the restroom and does not want to

cooperate." The foreperson also requested all of Mark's testimony. The court, with

counsel present, decided to question the foreperson about the matter. The court

confirmed that the jury had started deliberating two days previously and asked the

foreperson how Juror No. 3's behavior had been "from beginning to—up to the present."

They had the following exchange:

       "[Juror No. 12]: Her behavior has gotten a little aggressive, I want to say from the

day that we started to where we are at today. She's—it's a little hard for us to work as a

                                              4
group because it's just—she's just not wanting to be part of the group. Sometimes she

turns her chair around. She doesn't want to participate in some of the conversations that

we have. She put herself in the bathroom this morning for a little while. One of the other

jurors went in there, talked to her. She came out right after that. I don't know what was

said in the bathroom, but she did start participating a little more. And she's more—a little

less aggressive than what she was. So I don't know what that conversation was. And that

was after I sent the note.

         "The Court: When you say 'aggressive,' is it her attitude or the words she's using?

         "[Juror No. 12]: Her attitude. No, no, the words, no. She's very—her words are

not bad. They are not vulgar or nothing like that. She's just not—I guess you could say

not a team player. But, like I did say, after this conversation that this—one of the other

jurors went into the bathroom to go talk to her, she now has a little—she's getting a little

more participant."

         The court confirmed that Juror No. 3 knew the foreperson had sent the note, and

the foreperson advised the court that she did not tell Juror No. 3 that she was sending a

note about her, but that the juror "might have that feeling that this was about her . . . ."

The court asked the foreperson whether she had talked to Juror No. 3 about her

participation:

         "[Juror No. 12]: Not yet. I was going to after lunch. I think the lady that did talk

to her did tell her something about her participation, and maybe that's probably the reason

why she started to participate a little bit more, but I am going to talk to her right after

lunch.

                                               5
       "The Court: Okay. Without revealing her position, has she taken a position with

respect to any of the counts, or what's her attitude about actually coming to a decision?

       "[Juror No. 12]: Her attitude is very strong, just very, very strong. And right—

like I said, right afterwards she's kind of changed, not as strong as it was before.

       "The Court: When you say 'strong,' is it—does it appear that she has her mind

made up with respect to the case in general?

       "[Juror No. 12]: Yes.

       "The Court: And how early did it appear to you that she arrived at that decision?

       "[Juror No. 12]: From the beginning.

       "The Court: Did she participate in any of the discussions before giving you the

feeling that she had made up her mind?

       "[Juror No. 12]: Yes.

       "The Court: She did for a while?

       "[Juror No. 12]: She did for—for the first day, then the second day this is it . . . ,

not changing, . . . , that was it. Then, like I said, I don't know what was said in the

bathroom, but it did change the last 20 minutes, right after I had given the note."

       The Court initially stated it was inclined to leave the matter alone, allow the

foreperson to speak to Juror No. 3, and see if the issues could be worked out among the

jurors. After consulting with counsel outside the foreperson's presence, the court decided

to inquire more specifically with the foreperson about Juror No. 3's conduct.




                                               6
       "The Court: The first two words of your note to me were 'not cooperating.' And

that basically is shorthand for what you have told us before, that once she made up her

mind then she wouldn't participate in the discussion. Is that correct?

       "[Juror No. 12]: Correct.

       "The Court: Okay. Wants to leave. Did she actually express that she wanted out

of there or, I mean, what made you write that?

       "[Juror No. 12]: She just said I just want to leave, and, you know, this is—get this

over with, kind of. That's kind of like what she expressed.

       "The Court: Okay. In terms of what you wrote, that she's making people feel

uncomfortable, elaborate on that a little bit for us.

       "[Juror No. 12]: Like yesterday she had her chair and she turned it to the wall.

Many times she pushes her chair all the way back to the wall. And this does make people

feel uncomfortable, especially when you turn your back on the rest of us. There is 12 of

us. There is 11 of us all participating and one of them has their chair turned around to the

wall. That doesn't make anybody—all the rest of the 11 of us feel uncomfortable when

she pushes her chair back and she gets upset. Because it's not going her way, she will

push her chair back and I'm not participating, do whatever you want type thing is what

she's saying."

       "The Court: Does she say that aloud or that is her body language?

       "[Juror No. 12]: Her body language."

       The Court confirmed that Juror No. 3 spoke with another juror in the bathroom

that morning while the foreperson was writing her note, and that the bailiff came to get

                                               7
the note before Juror No. 3 left the bathroom. According to the foreperson, Juror No. 3

was in the bathroom between 10 and 15 minutes. The court asked the foreperson if it

would help for the court to speak with the juror, and she responded that it would, but she

proposed speaking to the juror first, then having the court to talk to her "if she is still

being her behavior not to where it should be. . . . But I think if I talk to her first she

wouldn't be going the other way. [¶] . . . [¶] Where she would get mad or pissed." The

foreperson stated that Juror No. 3 adopted her attitude immediately after lunch on the first

day of deliberations.

       Outside the jurors' presence, the prosecutor told the court she wanted it to speak

with Juror No. 3. Defendant's counsel expressed concern about the situation and

uncertainty about whether the facts showed Juror No. 3 was failing to cooperate. He

observed the juror might not be feeling her time was well spent trying to change minds

when jurors were not changing their minds her way: "I don't know which way this

person is voting, obviously, but, if they've come to a decision and they have expressed a

decision as to a certain way and has [sic] continued to do so, I don't know that that's

failing to cooperate." When the court indicated it would speak with Juror No. 3 after

lunch, defendant's counsel reminded the court that the foreperson wanted to speak with

her first, and in his view, that was the more appropriate course than possibly alienating

her more. The court stated: "I understand the concern. . . . But . . . if it is a problem and

I allow it to continue, then potentially we are wasting a lot of time, if the juror ultimately

is dismissed. If I hear something from [Juror No. 3] that leads me to conclude that I



                                               8
should exercise my discretion and dismiss her, I'd rather do it now, rather than waste a lot

more time and do it later."

       After the afternoon break, the court questioned Juror No. 3. The court told her it

had been advised she was not contributing to the discussion and asked whether that was

accurate. She responded that it was inaccurate, and when asked to describe her

participation said, "I have been speaking as I feel. I have been speaking according to the

evidence. There is a lot of over talk. There is a lot of interruption, but I'm deliberating.

And I deliberated until we went to lunch [this afternoon]." She explained her interaction

as "[t]rying to get jurors to—that don't see, try to get them to see. Sometimes it comes to

a point that no matter—I feel that there is nothing else that I can say on a particular topic

that would change anybody else's mind." In response to questioning, she confirmed she

could render a decision on all nine counts, but did not think the other jurors were in the

same frame of mind "at this point . . . but anything is possible." She made the jury aware

that morning that she might change her mind after further deliberation. Juror No. 3

confirmed that she had entered the restroom, but said she was there no more than five

minutes during a period that the jury was waiting for a court reporter and deliberation

could not continue without the reporter due to questions about testimony. Juror No. 3

told the court she "[a]bsolutely" had an open mind, that she had been through the case

from the beginning, and wanted to see it through to the end. She explained: "I'm not

trying to be disrespectful. I'm not trying to be rude. I'm not trying to not be a participant.

It's just that sometimes when you disagree and—have you ever had, perhaps, a



                                              9
disagreement with your wife and you are like, well, there is really nothing else I can

say—[¶] . . . [¶] . . . on a particular issue? Not the case as a whole."

       After Juror No. 3 left, the prosecutor asked the court to dismiss her, stating she felt

Juror No. 3's remarks were "disingenuous" and untruthful as to whether she in fact had an

open mind on the matter. She pointed out the foreperson had said they had not yet gone

through the counts and Juror No. 3 had already made up her mind; that she was disruptive

and physically isolating herself by pushing her chair away and turning her back on them;

and also "throwing tantrums." The prosecutor said that according to the foreperson, Juror

No. 3 was not complying with the instruction making it the jurors' duty to talk with one

another and deliberate in the jury room and decide the case only after discussing the

evidence with the other jurors. Defense counsel disagreed, stating he felt Juror No. 3 was

voicing her frustrations, which was appropriate in an impasse. He felt that to assess the

charge she was being disruptive, they needed to hear from all 12 jurors as to whether that

was true and she was refusing to deliberate.

       The court stated that it had personally observed Juror No. 3 outside sleeping on a

bench away from other jurors who were amicably chatting, and that the court "saw her as

somewhat isolated." It pointed out the juror had told them she was prepared to vote on

all nine counts. The prosecutor took that to mean that Juror No. 3 had reached a decision

before the jurors had discussed all of the evidence. The prosecutor added that the juror

appeared hostile, an assessment with which defense counsel disagreed: "I do agree that

she did appear defensive. . . . [S]he's been brought in front of the task master to explain

her actions. I mean, I can understand her being defensive of that. I don't think she was

                                               10
hostile before the Court. Quite the opposite. I think that she was trying to explain her

position to the court." Defense counsel saw Juror No. 3 as "fervent in what she thinks

should happen" and wanted to see the case to the end.

       The court questioned the foreperson once again. The foreperson confirmed that

initially, the jury had taken a collective vote on all nine counts, and then started going

through each count individually. At that point, after a little less than two and a half hours

of deliberation, Juror No. 3 said, "This is how I feel, this is what it is, and you're not

going to change my mind, period, I'm not going to do anything else other than this." The

court asked whether from that time until the time the foreperson wrote her note Juror No.

3 was particularly or mostly silent, and the foreperson responded that Juror No. 3 was

"not mostly silent. She would view her points, and she was getting upset with the other

people because she was saying they were fine. And she made a point to me to let her

know that was upsetting her, other things upset her. She was just, you know, not being

cooperative. She would, like I said, turn her chair around, push her chair back. Then she

said, Okay, now I'm going to shut down, I'm just going to shut down. And then after

about 15 minutes of coolness then she would view her point of what we were talking

about." The foreperson related that Juror No. 3 had originally been appointed the

foreperson, but when she (the foreperson, Juror No. 12) read something, Juror No. 3 got

upset and told Juror No. 12 to take the position. After the foreperson took the position,

Juror No. 3 told her she was offended. According to the foreperson, "That was in the

morning at the beginning, and it kind of like went from there when we first started."



                                              11
       In response to defense counsel's questioning, the foreperson stated that Juror No.

3's remarks were directed both toward deliberations and to voice her frustrations. The

prosecutor confirmed with the foreperson that when Juror No. 3 said she was done, the

jury was still in the process of going over the facts of the case.

       After the foreperson left, the trial court stated: "I was willing to give [Juror No. 3]

the benefit of the doubt until we heard again from [the foreperson]. It just occurs to me

and strikes me rather positively that after only a short period of time, approximately two

and a half hours, perhaps not quite that long, she had made up her mind. And, based on

what I've heard and her responses, I, frankly, don't trust her to be able to deliberate with

an open mind any further." Defense counsel responded that he thought after the initial

vote, Juror No. 3 had tried to explain why she voted and convince them as to her position,

and that she returned to deliberate without knowing about the foreperson's note. He felt

Juror No. 3 still had an open mind, was still trying to deliberate with the other jurors, and

was frustrated that some were not allowing her to express her views. He pointed out she

had changed her mind as to one point. He felt the most appropriate course was to allow

the foreperson to talk to Juror No. 3 and resolve the situation. When the court pointed

out that Juror No. 3 had already made up her mind on all counts, defense counsel said,

"That's not necessarily inappropriate. At this point, based on the evidence she has before

her, and I don't think all of the readback has been completed, that she has not had

anything to change her point of view. Sounds like other people are of the same mind,

that they are—they are arguing their points of view." The court responded, "But I have

not heard that other people are engaging in the same behavior, and that to me carries a

                                              12
certain amount of weight. I don't like the idea of dismissing her. I don't like the idea of

having this jury start the deliberations all over again. But I do like the idea of having a

set of jurors who can work together and work through every count, every necessary fact

of—if need be and arrive at a verdict."

       Over defense counsel's objection, the court dismissed Juror No. 3. It reasoned:

"First is what we have from both jurors. Next, my observation about—or separation from

the group over the lunch hour. And I will freely admit I didn't see any other—have the

opportunity to observe any other interaction between the jurors over the lunch hour or

during breaks or anything else, so it may—I may be criticized on basing a decision based

on one observation. Her demeanor while—I'm speaking now of [Juror No. 3], to me did

seem somewhat defensive. But I think [defense counsel] has a valid point of being called

in front of the principal, so to speak, might put someone on the defensive. And I've

already articulated what I thought about specific statements being made by both jurors

that we've interviewed here. I think that's enough." After she was excused, Juror No. 3

said, "Your honor, I'm really sorry that you feel this way. Thank you."

B. Legal Principles

       Our state's high court has emphasized: "Great caution is required in deciding to

excuse a sitting juror. A court's intervention may upset the delicate balance of

deliberations. The requirement of a unanimous criminal verdict is an important

safeguard, long recognized in American jurisprudence. This safeguard rests on the

premise that each individual juror must exercise his or her own judgment in evaluating

the case. The fact that other jurors may disagree with a panel member's conclusions, or

                                             13
find disagreement frustrating, does not necessarily establish misconduct." (People v.

Allen (2011) 53 Cal.4th 60, 71.)

       Nevertheless, the law permits the trial court to discharge a juror at any time,

including during deliberations, based on a showing of "good cause" that the juror is

"unable to perform his or her duty." (Pen. Code, § 1089; see People v. Wilson (2008) 43

Cal.4th 1, 25.) " ' "When a court is informed of allegations which, if proven true, would

constitute good cause for a juror's removal, a hearing is required. [Citations.]"

[Citation.] . . . "Grounds for investigation or discharge of a juror may be established by

his statements or conduct, including events which occur during jury deliberations and are

reported by fellow panelists." ' " (People v. Homick (2012) 55 Cal.4th 816, 898; see also

People v. Barnwell (2007) 41 Cal.4th 1038, 1051.) Whether and how to investigate an

allegation of juror misconduct is a matter of the court's discretion. (People v. Allen,

supra, 53 Cal.4th at p. 69.) The court "must conduct 'whatever inquiry is reasonably

necessary to determine' " whether grounds for discharging the juror exist. (People v.

Cleveland (2001) 25 Cal.4th 466, 480.)

       " 'A juror who refuses to follow the court's instructions is "unable to perform his

duty" within the meaning of Penal Code section 1089.' " (People v. Wilson, supra, 43

Cal.4th at p. 25.) This includes instructions that "each juror render a verdict 'according to

the evidence presented and the instructions of the court' " (ibid.) or that each juror " 'will

consider all of the evidence, follow the law, exercise your discretion conscientiously, and

reach a just verdict.' 'A juror who actually refuses to deliberate is subject to discharge by

the court [citation] . . . .' [Citations.] 'A refusal to deliberate consists of a juror's

                                                14
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.' " (Wilson, at pp. 25-26.)

       On the other hand, "[t]he circumstance that a juror does not deliberate well or

relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a

ground for discharge. Similarly, the circumstance that a juror disagrees with the majority

of the jury as to what the evidence shows, or how the law should be applied to the facts,

or the manner in which deliberations should be conducted does not constitute a refusal to

deliberate and is not a ground for discharge. A juror who has participated in deliberations

for a reasonable period of time may not be discharged for refusing to deliberate, simply

because the juror expresses the belief that further discussion will not alter his or her

views." (People v. Cleveland, supra, 25 Cal.4th at p. 485.)

       "While removal of a juror is committed to the discretion of the trial court, upon

review, the juror's disqualification must appear on the record as a demonstrable reality.

'The demonstrable reality test entails a more comprehensive and less deferential review'

than substantial evidence 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 bias [or

other good cause for removal] was established. It is important to make clear that a

reviewing court does not reweigh the evidence under either test. Under the demonstrable

                                              15
reality standard, however, the reviewing court must be confident that the trial court's

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

(People v. Homick, supra, 55 Cal.4th at p. 899; see also People v. Fuiava (2012) 53

Cal.4th 622, 712; People v. Wilson (2008) 44 Cal.4th 758, 821 [a juror's inability to

perform as a juror "requires a 'stronger evidentiary showing than mere substantial

evidence' "]; People v. Harrison (2013) 213 Cal.App.4th 1373, 1383.) In assessing the

trial court's ruling, the reviewing court must "consider not just the evidence itself, but

also the record of reasons the [trial] court provides." (People v. Barnwell, supra, 41

Cal.4th at p. 1053.)

C. Analysis

       Defendant contends the record does not show to a demonstrable reality that juror

No. 3 was unable to perform her duty as a juror. He maintains the court did not conduct

an adequate inquiry into the matter, having limited its questions to the foreperson who

raised the issue and Juror No. 3. He further argues its discretion was not exercised in

accordance with the applicable legal standards in that Juror No. 3's strong or even

unreasonable opinions during the second or third day of deliberations did not constitute a

refusal to deliberate, and her ability to vote on all nine counts two days into deliberations

did not render her any less or more capable of further discussion than any other juror.

Defendant argues the court's finding to the contrary is not supported by the record or the

law, since Juror No. 3 indicated she had changed her mind as to one issue and was

"absolutely" capable of having an open mind, and the jury foreperson admitted her

attitude had changed and she had started participating "a little more" after the third juror

                                              16
spoke with her. According to defendant, the record merely shows Juror No. 3's

frustration with fellow jurors "periodically manifested itself in the 'silent treatment' " that

was not long-lived and did not prevent her from returning to the table to express her

opinions.

       Having reviewed the entire colloquy pertaining to Juror No. 3's actions, as well as

the trial court's stated reasons, we conclude Salazar's contentions have merit. Several

flaws are apparent in the trial court's handling of the matter. We are cognizant that the

nature and extent of a trial court's investigation into such a matter is a matter of its

discretion. (People v. Allen, supra, 53 Cal.4th at p. 69.) The foreperson's complaint

about Juror No. 3 pertained to her conduct inside the jury room in view of the entire jury,

and Juror No. 3's account differed significantly from the foreperson's complaints. The

trial court, however, limited its inquiry about Juror No. 3's behavior to Juror No. 3 and

the foreperson, even though the foreperson informed the court that another juror had

spoken with Juror No. 3 privately, after which Juror No. 3's attitude and participation

improved. The court did not see fit to question the third juror who had spoken privately

with Juror No. 3 or any other juror to ascertain additional information and try to resolve

the conflicting stories about Juror No. 3's conduct, declining defense counsel's request

that the court question all of the jurors. (Compare Allen, supra, 53 Cal.4th at p. 70

[rejecting defendant's contention that trial court abused its discretion by interviewing all

of the jurors to ascertain whether they could provide additional information about one

juror's assertion suggesting that juror had decided the case before it was submitted];



                                              17
People v. Wilson, supra, 44 Cal.4th at p. 826 [court questioned all 12 jurors before

deciding to discharge a juror]; People v. Cleveland, supra, 25 Cal.4th at pp. 471-473.)1

       Second, the court did not take lesser steps to ameliorate the situation as by calling

in the entire jury and admonishing or reinstructing it as to its duties, or by first

conducting a limited inquiry with jurors other than Juror No. 3 to confirm the

foreperson's account. (See, e.g., People v. Allen, supra, 53 Cal.4th at p. 74 [trial court did

not attempt to resolve a claim that a juror had prejudged the case with curative

instructions and ultimately erred by dismissing the juror]; People v. Alexander (2010) 49

Cal.4th 846, 923-925, 926, 928 [after questioning foreperson concerning another juror's

alleged lack of cooperation or discussion, court's action in rereading instructions

concerning how the jury should deliberate was not an abuse of discretion; the court is

authorized to take less drastic steps than discharge of a juror to deter any misconduct or

misunderstanding it has reason to suspect]; People v. Cleveland, supra, 25 Cal.4th at p.

480 [it is often 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



1       Concededly, "a trial court's inquiry into possible grounds for discharge of a
deliberating juror should be as limited in scope as possible, to avoid intruding
unnecessarily upon the sanctity of the jury's deliberations. The inquiry should focus upon
the conduct of the jurors, rather than upon the content of the deliberations. Additionally,
the inquiry 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."
(People v. Cleveland, supra, 25 Cal.4th at p. 485.) But here, the court would have been
well within its discretion to inquire of the other jurors about Juror No. 3's claimed
isolating conduct in the jury room, whether she in fact pushed her chair away, faced the
wall, and left the room for long periods during deliberations.
                                              18
to permit the jury to continue deliberations before making further inquiries that could

intrude upon the sanctity of deliberations]; People v. Bradford (1997) 15 Cal.4th 1229,

1350-1352 [when faced with a request to remove " 'a few hostile jurors,' " court asked the

jury as a whole whether they could continue deliberations and reread several jury

instructions concerning its duty to deliberate]; People v. Diaz (2002) 95 Cal.App.4th 695,

700-702 [questioning several jurors then bringing all of the jurors in for rereading of

instructions relating to juror duties before deciding the next day after further questioning

to dismiss a juror].) Nor did the court permit the foreperson to attempt to resolve the

matter. Rather, although the foreperson expressed a desire and willingness to speak with

Juror No. 3 before the court inquired of her, the court out of a concern that not speaking

with her itself might "waste a lot more time," called Juror No. 3 into the courtroom and

confronted her on her behavior. Under the circumstances here, the court erred by not

taking a more limited or measured approach in that aspect of its investigation: "[T]o

ensure the sanctity and secrecy of the deliberative process, a trial court's inquiry into

grounds for discharging a deliberating juror should be as limited as possible, and should

cease once the court is satisfied that the juror in question '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.' " (People v.

Manibusan (2013) 58 Cal.4th 40, 53, italics added.)

       Having viewed the record as a whole, it does not otherwise reflect as a

demonstrable reality that Juror No. 3 was unable to function as a juror or had prejudged

the case. The court based its dismissal of Juror No. 3 on three grounds: (1) the

                                              19
foreperson's and Juror No. 3's responses to its questions after the foreperson sent her note;

(2) the court's observation that Juror No. 3 was sleeping on a bench some distance from

other jurors while they chatted outside the courtroom; and (3) Juror No. 3's attitude and

defensiveness during her questioning by the court. But the foreperson's account, which

as we have stated conflicted with Juror No. 3's account, did not reflect that Juror No. 3

had prejudged the case or that she exhibited a total failure to deliberate or participate: the

foreperson recounted that Juror No. 3 "sometimes" turned her chair around and did not

want to participate in "some" of the conversations. Further, the foreperson confirmed that

after Juror No. 3's private discussion with the other juror—immediately after the

foreperson sent her note—Juror No. 3's attitude had changed and she got "a little more

participant." The foreperson also had confirmed that the jury took a vote on all nine

counts at the outset and the jury spent the next day listening to a readback of testimony;

for Juror No. 3 to have related that she was prepared to vote on all counts at the point of

the third day of deliberations is not extraordinary or indicative of any inclination to

ignore the jury's discussions or refusing to deliberate. The foreperson's opinions about

Juror No. 3's behavior, including that she was not a "team player," should not have played

any role in the court's ruling. (People v. Allen, supra, 53 Cal.4th at p. 75.) Juror No. 3's

"conduct during deliberations may have annoyed other jurors, but that is not dispositive

evidence that [she] had prejudged the case." (Id. at p. 74.) "Great tension may arise

when a group of people are asked to make an important decision and views vary. While

some jurors may be understandably impatient that another will not adopt their view and



                                              20
abandon his or her own, the mere failure to change a vote is not necessarily misconduct."

(Id. at p. 75.)

       The court's observation of Juror No. 3's conduct outside the courtroom—sleeping

on a bench a distance away from the other jurors—does not support a conclusion under

any standard of review that she was unable or unwilling to deliberate, had prejudged the

case, refused to heed the court's instructions, or was otherwise unable to carry out her

duties as a juror. This observation was an insufficient basis for the court to discharge her

for failing to perform her duties as a juror.

       Finally, Juror No. 3's defensiveness in questioning about her behavior in the jury

deliberation room provides no ground for her removal. It was entirely predictable and

understandable, as the court and defense counsel acknowledged, that Juror No. 3 would

defend her actions and behavior to the court and counsel.

       Our conclusion in this case is guided by People v. Allen, supra, 53 Cal.4th 60,

where the California Supreme Court reversed the trial court's dismissal of a juror, Juror

No. 11, who had reportedly made up his mind before deliberations commenced. When

interviewed, other jurors were equivocal as to whether he made such statements.2 The



2       When questioned by the trial court, Juror No. 11 said that he had not made up his
mind and he had voted undecided during a preliminary vote on the fifth day of
deliberations. (People v. Allen, supra, 53 Cal.4th at p. 74.) Another juror asserted that
several times before deliberations began, Juror No. 11 had said he was waiting for the
prosecutor to bring her case forward, but it never happened. (Id. at p. 66.) Juror No. 11
admitted having said more than once during deliberations that when the prosecution
rested, it had not convinced him. (Id. at p. 68.) The juror who reported these statements
to the trial court felt that Juror No. 11 was not being honest in denying that he had
prejudged the case. (Ibid.) Yet another juror said that he or she suspected that Juror No.
                                                21
high court said: "This record does not manifestly support [that the juror prejudged the

case.] [¶] Although the record amply demonstrates that during deliberations Juror No.

11 did say words to the effect that, 'When the prosecution rested, she didn't have a case,'

the precise meaning of his statement is not entirely clear. . . . . [¶] . . . [¶] . . . Juror

No. 11's statement was made during deliberations, and only made reference to his

previous state of mind at a single point during the trial. It did not indicate an intention to

ignore the rest of the proceedings. The Attorney General has cited no case, and we have

found none, in which a juror was discharged for prejudgment based solely on comments

made during deliberations." (Id. at pp. 72-73.) The Allen court pointed out that the

juror's remark was not an " 'unadorned statement' that he had conclusively prejudged the

case. It did not establish that he had ignored further evidence, argument, instructions, or

the views of other jurors. Although [Penal Code] section 1122 requires jurors not to form

an opinion about the case until it has been submitted to them, 'it would be entirely

unrealistic to expect jurors not to think about the case during the trial . . . . ' [Citation.]

A juror who holds a preliminary view that a party's case is weak does not violate the

court's instructions so long as his or her mind remains open to a fair consideration of the

evidence, instructions, and shared opinions expressed during deliberations. [¶] . . . The

record does not demonstrate that Juror No. 11 refused to listen to all of the evidence,



11 began deliberations with his mind made up, but later had said, at the start of
deliberations, that he was undecided. (Id. at p. 67.) Another juror said that Juror No. 11
said that he had his mind made up before deliberations began. (Ibid.) Another juror said
the same thing, but added that Juror No. 11 then recanted his statement. (Ibid.)

                                               22
began deliberations with a closed mind, or declined to deliberate." (Allen, supra, 53

Cal.4th at p. 73, italics added.)

       The court further pointed out that though the juror had a "strong opinion" about

the case, he nevertheless was participating in jury discussions. (People v. Allen, supra,

53 Cal.4th at p. 54.) His conduct was consistent with what he had told the court: that he

had not made up his mind before deliberations began, but "[t]he court here . . . implicitly

rejected his denials of prejudging the case. Yet, the court made no findings that his

'undecided' vote and participation were somehow a sham or lacking in good faith.

Moreover, the court did not ask Juror No. 11 what he meant by his statement. Nor did it

attempt to resolve the matter with curative instructions." (Id. at p. 74.)

       Allen found the trial court's approach deficient in that it relied on the opinions of

many jurors whose stories differed, but found that the juror in question had " 'made it

relatively clear to a majority of the jurors here that he . . . had his mind made up at the

time . . . before the matter had been submitted to the jury.' " (People v. Allen, supra, 53

Cal.4th at p. 75.) This was held to be inconsistent with the record. (Ibid.)

       Finally, the court stated: "The reality that a juror may hold an opinion at the

outset of deliberations is, as we have noted [citation], reflective of human nature. It is

certainly not unheard of that a foreperson may actually take a vote as deliberations begin

to acquire an early sense of how jurors are leaning. We cannot reasonably expect a

juror to enter deliberations as a tabula rasa, only allowed to form ideas as conversations

continue. What we can, and do, require is that each juror maintain an open mind,

consider all the evidence, and subject any preliminary opinion to rational and collegial

                                              23
scrutiny before coming to a final determination. [¶] . . . [¶] Certainly, a court may not

discharge a juror merely because he or she harbors doubts about the prosecution's case.

[Citation.] That Juror No. 11 was unimpressed by the strength of the evidence and

unpersuaded by his colleagues' assertions during deliberations does not amount to

prejudgment. To conclude otherwise would . . . undermine the principle that both parties

are entitled to the independent judgment of each individual juror." (People v. Allen,

supra, 53 Cal.4th at pp. 75-76, italics added.)

       Based on the foregoing, we cannot uphold the court's dismissal of Juror No. 3

during the jury's deliberations. The record does not reflect that the court exercised "great

caution" in reaching its decision to excuse a sitting juror (People v. Allen, supra, 53

Cal.4th at p. 71); the basis for her discharge does not appear on the record as a

demonstrable reality; and the court's conclusion is not manifestly supported by the

evidence on which the court relied. (Ibid.) All of these protections are important, as

" '[t]he right to unbiased and unprejudiced jurors is an inseparable and inalienable part of

the right to a trial by jury guaranteed by the constitution.' " (People v. Earp (1999) 20

Cal.4th 826, 852; In re Hamilton (1999) 20 Cal.4th 273, 293 ["An accused has a

constitutional right to a trial by an impartial jury."].) Because Juror No. 3's conduct

during or outside of deliberations does not establish either prejudgment or a refusal to

deliberate under these standards, the trial court abused its discretion in discharging her

from the jury.




                                             24
                   II. Constitutionality of Evidence Code Section 1108

       In view of our disposition, we need not reach defendant's remaining challenges to

the admission of propensity evidence and constitutionality of Evidence Code section

1108. (See People v. Allen, supra, 53 Cal.4th at p. 79.)




                                            25
                                DISPOSITION

    The judgment is reversed.



                                              O'ROURKE, J.

I CONCUR:


McDONALD, J.




                                    26
BENKE, J., Concurring.

      The foreperson requested the court allow additional time for the jury to deliberate

before dismissing Juror No. 3, who the foreperson stated was making progress in

participation. I conclude the trial court should have granted the request. Therefore, I

would reverse solely on the ground that the trial court prematurely dismissed Juror No. 3.



BENKE, Acting P. J.
