Filed 2/8/16 P. v. Campos CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040698
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS130605)

         v.

JOSE HERNANDEZ CAMPOS,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         In a first jury trial that ended in June of 2013, defendant Jose Hernandez Campos
was found guilty of two charges: inflicting corporal injury on a spouse or cohabitant
(Pen. Code, § 273.5, subd. (a))1 and misdemeanor vandalism (§ 594, subd. (b)(2)(A)).
The jury found defendant not guilty of three charges: attempted murder (§§ 664/187,
subd. (a)), kidnapping for rape (§ 209, subd. (b)(1)), and dissuading a witness by force or
threat (§ 136.1, subd. (c)(1)). The jury was unable to reach verdicts as to four charges:
forcible rape (§ 261, subd. (a)(2)), criminal threats (§ 422, subd. (a)), false imprisonment
by violence (§ 237, subd. (a)), and dissuading a witness (§ 136.1, subd. (b)(1)). The trial
court declared a mistrial as to the latter four counts.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       In a second jury trial that ended in December of 2013, defendant was found guilty
of the four offenses as to which the prior jury could not reach a verdict: forcible rape
(§ 261, subd. (a)(2)), criminal threats (§ 422, subd. (a)), false imprisonment by violence
(§ 237, subd. (a)), and dissuading a witness (§ 136.1, subd. (b)(1)). At defendant’s
sentencing hearing, the trial court imposed a nine-year prison term.
       On appeal, defendant challenges his four convictions at the second trial. He
contends the trial court erred by: (1) informing the jury about the other five charges;
(2) removing a juror during deliberations; and (3) conducting an inquiry into juror
misconduct that intruded on the sanctity of the jury’s deliberations. For reasons that we
will explain, we will affirm the judgment.

                                 II.    BACKGROUND
       A.     Testimony of Jane Doe
       Jane Doe and defendant met in 2002 or 2003, when they were living in the same
apartment complex. Doe was in middle school at the time. At some point, Doe and
defendant began a sexual relationship. In 2004, when Doe was 15 years old and
defendant was 21 or 22 years old, they had a child together. They were living together
and considered themselves married, even though they had not been legally married. In
2007, just before Doe turned 18, Doe and defendant had another child together.
       In 2009 or 2010, Doe moved out of the residence she had been sharing with
defendant and their two children. According to Doe, they were having “problems” due to
defendant’s unfounded jealousy. They subsequently “got back together,” although Doe
left defendant on one other occasion. After getting back together, their relationship
included a lot of yelling and verbal arguments, but no physical violence.
       In April of 2011, Doe and defendant agreed to custody orders, which provided that
defendant would have custody of the children and that Doe would visit with the children
once every 15 days. However, Doe continued to live with defendant and the children



                                             2
until February of 2012, when defendant told her to leave. Doe moved in with her parents,
who lived about two blocks away; the children stayed with defendant. Defendant would
call Doe at all hours after she moved out, and she eventually changed her cell phone
number. Defendant would also interfere with Doe’s visitation. Once or twice, defendant
said he would allow Doe to see the children only if she had sex with him, so she did. At
some point, defendant told Doe that he was going to try to prevent her from seeing the
children, and he brought a motion in court to preclude Doe from having any visitation. A
court date was set for July 26, 2012.
       On July 8, 2012, Doe picked up the children and spent the day with them. Doe
brought the children back to defendant’s house at night with the expectation of picking
them up again in the morning.
       When Doe went to defendant’s residence the next morning, defendant answered
the door. The children were not there.2 Defendant grabbed Doe by the arm, pulled her
inside, and hit her in the face with his fist, causing her to fall to the floor. Defendant told
Doe that he was going to kill her. Defendant indicated he was angry because Doe was
involved with another person and their children would be around that person.
       Defendant dragged Doe to the kitchen, got on top of her, and began hitting her in
the face with closed fists, repeating that he was going to kill her. Defendant then got a
knife and put it to Doe’s throat, again saying he was going to kill her. Defendant then
released the knife and tried to strangle Doe. He put both of his hands on her neck and
squeezed. Doe began to feel that she could not get enough air, and her body felt weak.
       While defendant’s hands were around Doe’s throat, Doe’s cell phone rang.
Defendant released Doe’s neck, grabbed her cell phone, and threw it. Defendant then
picked Doe up and brought her into the living room and then into his bedroom, while


       2
          Defendant’s mother testified that defendant had asked her to take the children
earlier that morning.

                                               3
again holding the knife to her neck. Defendant threw Doe onto the bed and took her
clothes off, despite Doe telling him not to. Defendant then had sex with her. Afterwards,
Doe tried to talk defendant into letting her go by promising that they could be together
again and that she would not tell anyone what had just happened. Defendant told Doe not
to report him to the police. Eventually, at about 2:00 p.m., defendant allowed Doe to
leave.
         Doe went home, spoke with her parents, and then flagged down a police officer
who was on patrol. She told the officer what happened and then went to the hospital.
Doe attended the court hearing on July 26, 2012, told the judge what had happened, and
obtained legal custody of the children. She subsequently applied for and obtained a
U visa, based on her status as a victim of domestic violence.3
         B.    Investigation
         The officer that Doe contacted was former Soledad Police Officer Zachariah
Swift.4 Doe told Officer Swift that her boyfriend had just battered her, raped her, and
held her against her will for five hours. Officer Swift observed visible injuries on Doe’s
face, including welts on her forehead, redness on the side of her face, and scratches on
her neck.
         Officer Swift took Doe back to the police station so he could interview her in
private. Doe told him that she had gone to defendant’s house to get her children, that
defendant had grabbed her and pulled her into his residence, that he had struck her in the
face and knocked her to the floor, that he had straddled her and hit her two more times,
that he had squeezed her neck, and that he had repeatedly said he was going to kill her.


         3
          Pursuant to title 8 of the Code of Federal Regulations, section 214.14, “An alien
is eligible for U-1 nonimmigrant status” if he or she “has suffered substantial physical or
mental abuse” as a result of having been a victim of domestic violence.
        4
          At the time of trial, Officer Swift was working for the Monterey County Sheriff’s
Department.

                                              4
Doe said that defendant had released his grip about the time her cell phone rang, that
defendant had broken her cell phone and thrown it, and that defendant had put a knife to
her neck and again threatened to kill her. Doe reported that defendant had dragged her to
the bedroom, removed her clothing, and had intercourse with her against her will.
Defendant had then kept her in his residence for several hours, trying to reconcile with
her, until she convinced him that she would come back.
         Defendant was taken into custody, and police searched his residence. The knife
was recovered from a dish drainer, and Doe’s broken cell phone was found under a
couch.
         Doe underwent a sexual assault exam. She gave an account of the assault that was
consistent with what she had told Officer Swift. Doe had bruises on her chest and “a lot
of bruising and a lot of injuries to her face.” Doe had petechiae, which can be caused by
strangling, over her eyes and over her cheekbones. She had a bruise on her arm and
scratches on her shoulder. She had no vaginal injuries, but the sexual assault nurse who
examined Doe testified that such injuries are rarely seen in sexual assault exams. The
nurse believed Doe’s injuries were consistent with a sexual assault.
         At the hospital, following her exam, Doe was interviewed by City of Soledad
Police Detective Jorge Arreola. Doe’s description of the incident was consistent with
what she had told Officer Swift and what she had told the sexual assault exam nurse,
except that she told Detective Arreola that defendant had raped her “three different
times,” all in the bedroom. Detective Arreola later clarified that Doe had provided this
information after he told her that defendant said they had had sex three times, in response
to his question about how many times defendant had sexually assaulted her.
         Defendant called Doe from jail after his arrest, and he spoke to Doe’s mother.
Defendant indicated that he might be sent to Mexico or sentenced to prison, and that if so,
he would not be able to provide for the children. He suggested that Doe drop the charges



                                              5
and claimed that “there are some that are not true.” He admitted that he “did mess up”
and that he had “beat her up hard,” but he claimed that Doe had forgiven him.
       C.     Defense Witnesses
       Defendant’s sister, Erica Hernandez, testified that she had sat through defendant’s
first trial and then decided to come forward, because in several respects, Doe’s testimony
had been inconsistent with what she had previously told Hernandez. First, Doe had
testified that she had walked home from defendant’s residence after the incident, but she
had told Hernandez that she “had gone dragging home” and did not know how she got
home. Second, Doe had testified that defendant kept her in the living room after the
assault, but she had told Hernandez that defendant had told her to leave and that she had
refused to leave without “settl[ing] matters with him.” Third, Doe had testified that she
went out and found a police officer, but she had told Hernandez that a police officer had
“seen her at her apartment where she lives.” Doe also mentioned to Hernandez that she
and defendant were supposed to go to court later that week, but that since defendant
would be in jail, the court would award custody to Doe.
       Defendant testified that on the morning of the incident, he had gone to work from
6:00 a.m. to 8:30 a.m. On the way home from work, defendant bought some beer, and he
drank one beer before Doe arrived at his house. The night before, he had consumed
alcohol and taken methamphetamine.
       Defendant acknowledged that he did not want Doe to take the children that day.
He was “bother[ed]” by the fact that Doe had told him she was going out with someone
the previous night, but he did not plan to commit any violence against Doe.
       Defendant also acknowledged that the children were with his mother when Doe
knocked on his door. He did not want the children to be around Doe’s new partner.
       According to defendant, when Doe knocked on his door and asked for the
children, defendant told her, “[D]on’t take them.” Doe told defendant that he was not
“going to decide what she was going to do with her life” and laughed. Defendant became

                                             6
angry, and he slapped her. Defendant then grabbed and pulled Doe, telling her to “keep
away” from the children, and he punched or slapped her two times. Doe fell to the floor,
and defendant got on top of her. Defendant grabbed Doe around the neck, but he let her
go when she began to cry. Defendant denied putting a knife to Doe’s neck, but he
admitted grabbing her cell phone and throwing it to the ground.
       Defendant testified that after he let go of Doe’s neck, Doe stood up. Defendant
hugged Doe and asked her to forgive him, and Doe asked defendant to forgive her. Doe
said she loved him and they kissed. Defendant admitted grabbing a knife from the
kitchen at that point, but he could not explain why he did so. Defendant admitted holding
the knife while telling Doe that he “could have killed her,” but he denied saying that he
“was going to kill her.”
       According to defendant, he and Doe talked in the living room for “a while.” Doe
took off her sweatshirt because she was hot, and she had only a bra underneath. They
kissed and defendant indicated he wanted to have sex. Doe took his hand and walked to
the bedroom. Defendant put the knife back into the kitchen before proceeding to the
bedroom. He helped Doe remove her clothes, and they then engaged in consensual sex.
Afterwards, they went into the living room, but they returned to the bedroom and had sex
two more times.
       Defendant testified that after he and Doe had sex, Doe said that they were going to
get back together. Defendant told Doe that she could leave and call the police, since he
had hit her. Doe told him no and that she loved him. She told defendant to go to sleep,
then shower, and then go get their children, and he agreed. Defendant told Doe to wait a
while before leaving, because of the marks on her face. Doe applied some makeup to her
face to cover the marks, then left, briefly returning to give him a kiss.
       On cross-examination, defendant acknowledged that at his first trial, he had
admitted to punching Doe with closed fists. Also during cross-examination, the



                                              7
prosecutor began asking defendant about his police interview, but the trial court sustained
a defense objection, and no further testimony was elicited on that topic.5
       D.     Procedural Background
       Defendant was charged with willful, deliberate, and premeditated attempted
murder (count 1; §§ 664/187, subd. (a)), kidnapping for rape (count 2; § 209,
subd. (b)(1)), forcible rape (count 3; § 261, subd. (a)(2)), criminal threats (count 4;
§ 422, subd. (a)), dissuading a witness by force or threat (count 5; § 136.1, subd. (c)(1)),
inflicting corporal injury on a spouse or cohabitant (count 6; § 273.5, subd. (a)), false
imprisonment by violence (count 7; § 237, subd. (a)), misdemeanor vandalism (count 8;
§ 594, subd. (b)(2)(A)), and dissuading a witness from reporting a crime (count 9;
§ 136.1, subd. (b)(1)).
       As to count 2 (kidnapping for rape) and count 3 (forcible rape), the information
alleged that defendant used a deadly or dangerous weapon (§ 12022, subd. (b)), and that
defendant kidnapped the victim (§ 667.61, subd. (d)(2)). As to count 3 (forcible rape),
the information also alleged another deadly or dangerous weapon use allegation.
(§ 667.61, subd. (e)(3).)
       In a first jury trial that ended in June of 2013, defendant was found guilty of two
charges: inflicting corporal injury on a spouse or cohabitant (count 6; § 273.5, subd. (a))
and misdemeanor vandalism (count 8; § 594, subd. (b)(2)(A)). The jury found defendant
not guilty of three charges: attempted murder (count 1; §§ 664/187, subd. (a)),
kidnapping for rape (count 2; § 209, subd. (b)(1)), and dissuading a witness by force or
threat (count 5; § 136.1, subd. (c)(1)). The jury was unable to reach verdicts as to four
charges: forcible rape (count 3; § 261, subd. (a)(2)), criminal threats (count 4; § 422,
subd. (a)), false imprisonment by violence (count 7; § 237, subd. (a)), and dissuading a

       5
        At a sidebar, the trial court found that defendant’s police interview was
inadmissible because of “a defective Miranda warning.” (See Miranda v. Arizona (1966)
384 U.S. 436 (Miranda).)

                                              8
witness from reporting a crime (count 9; § 136.1, subd. (b)(1)). The trial court declared a
mistrial as to the latter four counts.
       In a second jury trial that ended in December of 2013, defendant was found guilty
of the four offenses as to which the prior jury could not reach a verdict: forcible rape
(count 3; § 261, subd. (a)(2)), criminal threats (count 4; § 422, subd. (a)), false
imprisonment by violence (count 7; § 237, subd. (a)), and dissuading a witness (count 9;
§ 136.1, subd. (b)(1)). As to the rape, the jury found not true the allegations that
defendant used a deadly weapon (§§ 667.61, subd. (e)(3), 12022, subd. (b)) and
kidnapped the victim (§ 667.61, subd. (d)(2)).
       At the sentencing hearing held on February 6, 2014, the trial court imposed a nine-
year prison term. It imposed the six-year middle term for count 3 (forcible rape), a
consecutive two-year term for count 9 (dissuading a witness), a consecutive one-year
term for count 6 (inflicting corporal injury on a spouse or cohabitant), concurrent two-
year terms for count 4 (criminal threats) and count 7 (false imprisonment by violence),
and a 664-day jail term for count 8 (misdemeanor vandalism).

                                    III.   DISCUSSION
       A.      Jury Instruction Regarding Other Charges
       Defendant contends the trial court erred by informing the jury at his second trial
about the five charges resolved at the first trial. The trial court instructed the jury
pursuant to CALCRIM No. 205 as follows: “Counts 1, 2, 5, 6 and 8 charging the
defendant with attempted murder in Count 1. Aggravated kidnapping for the purpose of
committing rape, Count 2, [Count] 5, dissuading a witness by force or threat, Count 6,
inflicting corporal injury on a spouse or cohabitant, and Count 8, vandalism, no longer
need to be decided in this case. Do not speculate about or consider in any way why you
no longer need to decide these counts.” The trial court further instructed the jury, “Do




                                               9
not consider the fact that there was another trial before this trial or speculate as to what
happened in that trial.”
       Defendant contends the above instruction should not have been given because it
“only served to give the jurors information that was irrelevant and highly prejudicial to
[defendant’s] case.” Defendant points out that, according to the bench notes for
CALCRIM No. 205, the instruction is intended to be given “if one or more of the original
counts has been removed from the case, whether through plea or dismissal,” and that
counts 1, 2, 5, 6, and 8 were never before the jury at the second trial.
       The Attorney General contends that defendant forfeited his challenge to the
instruction by failing to object at trial, citing People v. Hudson (2006) 38 Cal.4th 1002
(Hudson) for the proposition that when an instruction is “ ‘correct in law and responsive
to the evidence,’ ” an objection is required in order to preserve a challenge to that
instruction on appeal. (Id. at p. 1012.) The Attorney General notes that defendant
affirmatively indicated he had no objections to the instructions given.
       Defendant contends we should reach the merits of his claim. He first argues that
the instruction was not “ ‘responsive to the evidence’ ” (Hudson, supra, 38 Cal.4th at
p. 1012) because the jury had not been previously told of the other five charges. We
disagree. During the second trial, the jury repeatedly heard that there had been a first
trial. The first trial was mentioned at numerous times during the testimony of various
witnesses, including during the defense’s cross-examination of Doe the defense’s direct
examination of defendant’s sister, and the prosecution’s cross-examination of defendant.
In addition, the original numbering of the charges was maintained at the second trial, so
the jury knew that it was considering only counts 3, 4, 7, and 9. On this record, we agree
with the Attorney General that the challenged instruction was “ ‘responsive to the
evidence.’ ” (Ibid.)
       Defendant next contends that no objection was required in order to challenge the
instruction on appeal because, by “bringing irrelevant facts to the jury’s attention,” the

                                              10
instruction affected his substantial rights. (See § 1259; People v. Johnson (2015)
60 Cal.4th 966, 993.) We will assume the instruction did affect defendant’s substantial
rights. (See People v. Harris (1981) 28 Cal.3d 935, 956 [instruction on evidence of
uncharged crimes affected defendant’s substantial rights].) In considering the merits of
defendant’s claim that the trial court should not have given the challenged instruction, we
apply an independent standard of review. (See People v. Waidla (2000) 22 Cal.4th 690,
733.)
        Defendant contends the instruction regarding counts 1, 2, 5, 6, and 8 was
erroneous because it alerted the jurors to “the existence of charges that they would
otherwise have known nothing about, and likely stimulated a curiosity that they would
not otherwise have had.” As discussed above, however, the jury had already learned that
there had been a first trial in this case and that the jury was considering only counts 3, 4,
7, and 9. Although the jury had not learned the specific crimes that had previously been
charged, the evidence adduced at the second trial “naturally supported” those other
charges, as the Attorney General asserts. For instance, the jury in the second trial heard
evidence that would logically lead to an attempted murder charge: defendant had choked
Doe until she could not breathe, and he had stopped only when interrupted by her cell
phone ringing. Likewise, the jury heard evidence that would logically lead to a
kidnapping for rape charge: defendant had carried Doe into his bedroom, while holding a
knife to her neck, then raped her. Thus, even before the challenged instruction, the jurors
were likely to have been curious about why defendant was not facing additional charges
and about the status of counts 1, 2, 5, 6, and 8.
        Defendant next claims that the trial court should have informed the jury that
defendant had been acquitted of the attempted murder and the kidnapping for rape, which
he classifies as the two most serious charges. Defendant relies on People v. Mullens
(2004) 119 Cal.App.4th 648 (Mullens), which held “that if a trial court permits the
prosecution to present evidence that the defendant committed one or more similar

                                              11
offenses for which he or she is not charged in the current prosecution, the trial court must
also allow the defense to present evidence of the defendant’s acquittal, if any, of such
crimes.” (Id. at pp. 664-665.) Here, however, defendant did not seek to introduce
evidence of his acquittals at the first trial. While Mullens instructs that a trial court must
allow the defense to introduce evidence of acquittals, it does not impose a sua sponte
instructional obligation on the trial court to inform the jury of those acquittals.
       Defendant next contends that the jury could not be expected to follow the
instruction to the extent it told the jury not to “speculate about or consider in any way”
why counts 1, 2, 5, 6, and 8 were no longer at issue. Defendant relies on several cases
in which evidence of prior charges or convictions was found prejudicial despite an
instruction telling the jury to disregard that evidence. (See People v. Allen (1978) 77
Cal.App.3d 924, 935 [evidence that defendant was on parole was not harmless in an
“extremely close case” in which the defendant’s credibility was a significant factor];
People v. Ozuna (1963) 213 Cal.App.2d 338, 342 [jurors could not have “put out of
their minds” the defendant’s own statement about being a convict]; People v. Roof (1963)
216 Cal.App.2d 222, 226 [effect of hearing defendant’s statement about having been
charged with another offense “could not have been undone” by jury admonition].)
However, our Supreme Court has more recently stated that we must presume a jury
followed a limiting instruction given as to “other crimes” evidence (e.g., People v.
Lindberg (2008) 45 Cal.4th 1, 26 (Lindberg)) and that evidence of prior arrests and
convictions is not necessarily “so prejudicial that its admission must always result in
reversal of the judgment” (People v. Jennings (1991) 53 Cal.3d 334, 375). Here,
defendant does not contend that the jury should not have heard the evidence underlying
counts 1, 2, 5, 6, and 8, but only that the jury should not have heard that certain charges
had been filed. The mere fact of the prior charges was not so inherently prejudicial that
the jury could not be expected to follow the trial court’s express admonition to not
speculate about why those charges were not at issue.

                                              12
       Finally, we do not agree with defendant that the challenged instruction could have
encouraged the jury to speculate that counts 1, 2, 5, 6, and 8 occurred on a different
occasion or involved a separate victim. As previously noted, the evidence adduced at the
second trial logically supported the charges in counts 1, 2, 5, 6, and 8, and the jury was
informed that it was considering only counts 3, 4, 7, and 9. Moreover, as already noted,
the jury was expressly instructed not to speculate about the five other counts, and we
must presume the jury was able to follow that admonition. (See Lindberg, supra, 45
Cal.4th at p. 26.)
       In sum, we conclude the trial court did not err by instructing the jury about the five
charges resolved at the first trial.
       B.      Removal of Juror
       Defendant contends the trial court erred by removing a juror during deliberations.
               1.     Jury Note and Inquiry
       The jury retired to deliberate at 3:44 p.m. on December 12, 2013 and deliberated
all day on December 13, 2013. On the third day of deliberations, December 16, 2013,
the jury submitted three notes to the trial court. One note concerned one of the
enhancement allegations. Another note indicated that the jury had reached verdicts as to
count 7 (false imprisonment by violence) and count 9 (dissuading a witness from
reporting a crime) but that it could not decide on count 3 (forcible rape) or count 4
(criminal threats). The third note read, “We have concerns about the integrity of one of
our jurors and the ability of that juror to follow [the] judge[’]s instructions.”
       The trial court brought the jury into court and asked for further information about
the juror who was “having difficulty following the law.” Juror No. 7, who had written
the note, indicated that two of the jurors felt that one of the jurors—later identified as
Juror No. 8—“had an opinion before entering deliberations and refused to listen to the
evidence and change it after that.” Juror No. 7 also asserted that Juror No. 8 had “tried to



                                              13
bring things into the deliberations that [the trial court] specifically told us not to,” such as
why “other counts” were not “brought up.”
       The trial court asked whether Juror No. 8 had made “a pronouncement at the
beginning of the deliberations about their views on the case.” Juror No. 7 replied, “Yes.”
The trial court asked for any other indications that Juror No. 8 was not following the
instructions. Juror No. 7 reported that Juror No. 8 had brought up “something personal”
as “the reason why he had decided the case.”
       Juror No. 4 explained that Juror No. 8 had “brought in past experiences with his
profession that have led to evidence that we haven’t heard or why [the trial court]
wouldn’t let certain testimony come in or things like that.” Juror No. 4 noted that the
jury had been “told to disregard anything that [the trial court] did as being for one side or
the other,” but that Juror No. 8 had “refused to do that.” The trial court asked, “What was
it that he brought into --[?]” Juror No. 4 referenced the prosecutor’s interrupted
questioning about defendant’s statement to the police. According to Juror No. 4, Juror
No. 8 had offered the other jurors an explanation for why they never heard more about
defendant’s statement to the police, telling them that it was “probably . . . because the
police had made a mistake somewhere and [defendant] was not Mirandized.” Several
other jurors had reminded Juror No. 8 that they “weren’t allowed to consider that,” but
Juror No. 8 had responded that “that was his life experience and that he could bring that
in.” Juror No. 4 further reported that when the jury was discussing certain counts, Juror
No. 8 had argued, “that’s a different charge, that’s a different crime.”
       The trial court asked if Juror No. 7 had anything to add about Juror No. 8 bringing
up topics “outside of the evidence.” Juror No. 7 stated that although the jury had been
told specifically not to consider why defendant “wasn’t being brought up on domestic
violence and other charges,” Juror No. 8 “kept wanting to bring that into evidence during
deliberations” and suggested that if defendant “wasn’t charged with that, then he must be
innocent of all the other stuff too.”

                                              14
       The trial court excused all of the jurors except for Juror No. 8. The trial court
asked Juror No. 8 if he wished to say anything. Juror No. 8 responded that the other
jurors had tended to “focus on the violence as essentially a crime,” and that he had been
“kind of amazed” that defendant was not facing an assault and battery charge “or
anything like that,” so he had commented that possibly that crime had been decided in
the first trial or that the prosecutor had not charged it for tactical reasons.
       The trial court stated that it did not want to “get too deeply into the deliberations”
and asked whether Juror No. 8 had brought in “the things they say you brought in.”
Juror No. 8 responded that he had not brought in anything from his “legal experience”
and referenced the prosecutor’s interrupted cross-examination regarding defendant’s
statement to the police. The trial court asked if Juror No. 8 had brought up “Miranda at
that time.” Juror No. 8 admitted, “I did.”
       Juror No. 8 denied saying that he had made up his mind “ahead of time” and
denied that he had indicated “a prejudice” during deliberations. The trial court asked if
Juror No. 8 if he had anything else to add, reminding Juror No. 8 that the trial court
wanted to “avoid getting into the deliberations of the jury.” Juror No. 8 responded that
“there was a difficulty separating the charges which were brought as opposed to the ones
that weren’t brought.” Juror No. 8 also admitted that he had, as alleged, told the other
jurors about “something personally that happened to [him]” concerning “the way human
beings react to essentially a high trauma between people that like each other.”
       The prosecutor asked for clarification of whether Juror No. 8 had “decided to vote
a particular way based on his personal experience without the consideration of the
evidence.” Juror No. 8 replied that he had “[a]bsolutely not” done so.
              2.      Arguments, Ruling, and Motion for New Trial
       After the jury left the courtroom, the prosecutor argued that Juror No. 8’s
comments showed that he had been “using his knowledge of the law in a way which is



                                               15
not before the jury” and “using his personal information.” The prosecutor asked the trial
court to discharge Juror No. 8.
       Defendant’s trial counsel opposed Juror No. 8’s discharge. He asserted that the
trial court had “delved too far . . . into the jury deliberations and some of the thought
processes.” He requested the trial court declare a mistrial.
       The trial court denied the defense motion for a mistrial and removed Juror No. 8.
The trial court noted that Juror No. 8 had admitted bringing up “his own views” about
why certain evidence did not come in and had brought up “the Miranda issue” with the
other jurors, in violation of the court’s admonition “not to discuss things that are not part
of the record.”
       When the jurors returned to the courtroom, the trial court asked the jury if any
other juror had “discussed personal experiences in the course of [the] deliberations.”
Several jurors replied, “No.” The trial court also asked whether any other juror felt
“prejudiced for one side or the other as a result of any extraneous matters that the excused
juror brought up during the course of deliberations.” None of the jurors responded. The
trial court then substituted an alternate juror for Juror No. 8 and instructed the jury to
begin deliberations anew. About two hours and 20 minutes later, the jury returned with
its verdicts, finding defendant guilty of all four counts.
       Defendant subsequently filed a motion for a new trial, raising several issues,
including the discharge of Juror No. 8. Defendant argued that there had not been a
showing that Juror No. 8 committed prejudicial misconduct or was unable to participate
in the deliberations. The prosecution filed opposition to defendant’s motion for a new
trial, arguing, inter alia, that the trial court had properly discharged Juror No. 8 because
the juror had engaged in “multiple acts of misconduct.”
       At the sentencing hearing held on February 6, 2014, the trial court denied
defendant’s motion for a new trial. As to the juror removal issue, the trial court reiterated
its finding that Juror No. 8 had committed misconduct: “It wasn’t just bringing up the

                                              16
personal experiences, but he admitted that he brought up the Miranda issue. . . . [¶] He
was a practicing attorney. And he, of all people, should have known not to ignore the
court instructions about not to speculate about why things were not ruled in. He brought
up his legal opinion. And his opinion may have been expressed as a juror. But with his
background, it was clearly misconduct on his part.”
              3.      Analysis
       The trial court may discharge a juror at any time, upon “good cause shown to the
court,” if the juror “is found to be unable to perform his or her duty.” (§ 1089; see
People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax).) “[A] juror is required to apply the
law as instructed by the court, and refusal to do so during deliberations may constitute a
ground for discharge of the juror. [Citation.]” (People v. Engelman (2002) 28 Cal.4th
436, 443.)
       “ ‘In determining whether juror misconduct occurred, “[w]e accept the trial court’s
credibility determinations and findings on questions of historical fact if supported by
substantial evidence.” ’ [Citations.]” (People v. Linton (2013) 56 Cal.4th 1146, 1194
(Linton).) The ultimate decision to discharge a juror is a matter within the trial court’s
discretion. (Lomax, supra, 49 Cal.4th at p. 589.) However, “ ‘a somewhat stronger
showing’ than is typical for abuse of discretion review must be made to support such
decisions on appeal. [Citation.]” (Ibid.) “[T]he basis for a juror’s disqualification must
appear on the record as a ‘demonstrable reality.’ This standard involves ‘a more
comprehensive and less deferential review’ than simply determining whether any
substantial evidence in the record supports the trial court’s decision. [Citation.] It must
appear ‘that the court as trier of fact did rely on evidence that, in light of the entire record,
supports its conclusion that bias was established.’ [Citation.] However, in applying the
demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is
whether ‘the trial court’s conclusion is manifestly supported by evidence on which the
court actually relied.’ [Citation.]” (Id. at pp. 589-590, fn. omitted.)

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       Defendant acknowledges that Juror No. 8 violated the trial court’s instructions not
to “guess” why the trial court made any ruling, by mentioning that defendant’s statement
to the police might have been excluded because of a Miranda violation. (See CALCRIM
Nos. 104, 222.) However, he argues that Juror No. 8’s misconduct was merely a
“technical violation” of the instructions and not so serious as to justify his discharge.
Defendant points out that Juror No. 8 apparently did not speculate as to what defendant
might have said in his police statement nor indicate that the jury should resolve the case a
particular way because of the Miranda violation.
       Defendant relies on two cases for the proposition that Juror No. 8’s misconduct
was too trivial to justify that juror’s removal. Both cases, People v. Wilson (2008) 44
Cal.4th 758 (Wilson) and Linton, supra, 56 Cal.4th 1146, were death penalty cases that
involved alleged violations of the admonition not to speak to anyone connected with the
case. In Wilson, a juror made comments during a break in the guilt phase indicating he
believed the defendant’s actions were partially attributable to the lack of a father or other
authority figure. (Wilson, supra, at pp. 836-837.) The California Supreme Court held
that the juror’s comments were merely “technical” and “trivial” violations of the trial
court’s admonitions, noting that they were comprised of “one, possibly two sentences,
spoken in rhetorical fashion and not in an obvious attempt to persuade anyone.” (Id. at
pp. 839-840.) In Linton, a juror violated the trial court’s admonitions by speaking to her
husband about the case, but she did not disclose to him any specific facts, and her
husband did not respond with any feedback or comments. The California Supreme Court
upheld the trial court’s finding that the juror did not commit misconduct. (Linton, supra,
56 Cal.4th at p. 1195.)
       The instant case does not involve an alleged violation of the admonition not to
speak to anyone connected with the case. Here, the jury misconduct involved violations
of the trial court’s admonitions not to “guess” why the trial court made certain
evidentiary rulings, to “use only the evidence that is presented in the courtroom,” not

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to use “sources of information outside of the evidence and law given to you in this case
in any way,” not to “speculate about or consider in any way” why the jury did not need
to decide counts 1, 2, 5, 6, and 8, and not to “consider the fact that there was another
trial before this trial or speculate as to what happened in that trial.” Specifically, Juror
No. 8—a practicing attorney with special legal knowledge—told the other jurors that the
trial court probably excluded defendant’s statement to the police because of a Miranda
violation, and he told the other jurors possible reasons why the jury was not asked to
consider charges such as assault or battery, suggesting that such charges might have been
decided in the first trial or that the prosecutor might have had a tactical reason for not
including such charges.
          “ ‘Jurors cannot be expected to shed their backgrounds and experiences at the door
of the deliberation room.’ ” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 76
(Allen).) “ ‘Jurors’ views of the evidence . . . are necessarily informed by their life
experiences, including their education and professional work. A juror, however, should
not discuss an opinion explicitly based on specialized information obtained from outside
sources. Such injection of external information in the form of a juror’s own claim to
expertise or specialized knowledge of a matter at issue is misconduct. [Citations.]’ ”
(Ibid.)
          The California Supreme Court held that a person with specialized legal knowledge
commits misconduct by bringing that knowledge into deliberations. While in general a
juror does not commit misconduct by making “a general statement about the law that
finds its source in everyday life and experience,” a juror with specialized legal knowledge
does commit misconduct by telling other jurors about “extraneous law, i.e., law not given
to the jury in the instructions of the court [citation].” (People v. Marshall (1990) 50
Cal.3d 907, 950, 949 [juror with law enforcement background committed misconduct by
telling other jurors that juvenile records are sealed]; see also In re Stankewitz (1985) 40
Cal.3d 391, 396, 400 [juror committed “overt misconduct” by telling the other jurors that

                                              19
he had been a police officer and that he knew the law of robbery, which was at issue in
the case].)
       In this case, the record supports a finding that Juror No. 8 injected his specialized
legal knowledge into the deliberations in violation of the trial court’s admonitions.
Moreover, the record supports a finding that Juror No. 8’s misconduct was not merely a
“technical violation” of the trial court’s instructions (Wilson, supra, at p. 839) but rather
misconduct serious enough to justify Juror No. 8’s discharge. The trial court had
specifically instructed the jury not to guess about the reason why certain rulings were
made and not to speculate about what happened at the first trial or why it did not need to
decide counts 1, 2, 5, 6, and 8. Juror No. 8 not only speculated about those matters, but
he shared his educated guesses about those matters with the other jurors. Further, his
improper comments were “the type of information that was inherently likely to influence
the jurors.” (People v. Thomas (2012) 53 Cal.4th 771, 819.) According to Juror No. 7,
Juror No. 8 explicitly suggested that if defendant was not charged with certain other
offenses “then he must be innocent of all the other stuff too.”
       In sum, the basis for Juror No. 8’s disqualification appears on the record “as a
‘demonstrable reality.’ ” (Lomax, supra, 49 Cal.4th at p. 589.) The trial court therefore
did not abuse its discretion by discharging Juror No. 8.
       C.     Juror Misconduct Inquiry
       Defendant contends the trial court’s inquiry into juror misconduct intruded on the
sanctity of the jury’s deliberations because the trial court asked the jurors, after removing
Juror No. 8, whether any of them had “discussed personal experiences” during
deliberations. Defendant argues that the trial court’s question erroneously suggested that
it would be misconduct for a juror to discuss personal experiences during deliberations
when in fact, “ ‘[j]urors cannot be expected to shed their backgrounds and experiences at
the door of the deliberation room.’ ” (Allen, supra, 53 Cal.4th at p. 76.)



                                              20
       “[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.” (People v. Cleveland (2001)
25 Cal.4th 466, 485.)
       In context, we do not agree with defendant that the trial court’s question
improperly suggested that the jurors could not use their personal experiences in any way
during deliberations. As the Attorney General points out, the trial court asked the
question immediately after discharging Juror No. 8 for improperly using his specialized
professional experience as evidence. The trial court’s question following removal of
Juror No. 8 did not convey to the jury that it was not proper to evaluate evidence based
on their personal experience. (See Allen, supra, 53 Cal.4th at p. 76.) The trial court had
previously instructed the jury, pursuant to CALCRIM No. 105, that in deciding whether a
witness’s testimony is true and accurate, the jurors were to “use [their] common sense
and experience,” and that instruction was reiterated in CALCRIM No. 226, which was
provided to the jury in written form. Nothing about the trial court’s jury misconduct
inquiry suggested that the jurors could no longer rely on their personal life experiences
when considering the evidence.
       In sum, we find no error in the trial court’s inquiry into juror misconduct.

                                   IV.   DISPOSITION
       The judgment is affirmed.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.
