Filed 3/9/17

               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


SAMUEL SHANKS et al.,                       2d Civ. B268459
                                   (Super. Ct. No. 56-2012-00423044-
     Plaintiffs and Respondents,              CU-PO-VTA)
                                           (Ventura County)
v.

DEPARTMENT OF
TRANSPORTATION,

     Defendant and Appellant.



            Gary Lynn Shanks died in a head-on collision with
another motorcycle on a state highway. In the ensuing wrongful
death action, a jury determined that the People of the State of
California (State) and the operator of the other motorcycle were
at fault. The jury found the State liable for a dangerous
condition on the highway and awarded Shanks’s family a total of
$12,690,000 in damages. After just 90 minutes of deliberation,
however, Juror No. 2 reported that Juror No. 7 was not
deliberating. The trial court confirmed this by questioning that
juror and a second juror who had “raised concerns” about Juror
No. 7. The court thereafter excused Juror No. 7 and seated an
alternate. It made no inquiry of the accused juror or of any of the
remaining jurors, including the foreperson.
             We conclude the record does not show as a
“demonstrable reality” that Juror No. 7 failed to deliberate or was
otherwise unable to perform her duty. (People v. Cleveland
(2001) 25 Cal.4th 466, 474-475 (Cleveland); Boeken v. Philip
Morris Inc. (2005) 127 Cal.App.4th 1640, 1686 (Boeken).) The
trial court consequently abused its discretion by discharging her.
This error was prejudicial in that the jury’s apportionment of
liability between the State and the other defendant was by a
nine-to-three vote, and Juror No. 7 had expressed her inclination
to vote for the State. (People v. Hamilton (1963) 60 Cal.2d 105,
128 (Hamilton), overruled on other grounds in People v. Morse
(1964) 60 Cal.2d 631, 648-649, and disapproved on other grounds
in People v. Daniels (1991) 52 Cal.3d 815, 865-866.) Accordingly,
we remand the matter to the trial court for a retrial of the
apportionment issue. In all other respects, we affirm.
              FACTS AND PROCEDURAL HISTORY
             State Highway 33 is a two-lane, north-south road,
with a posted speed limit of 55 miles per hour. The accident
involving Shanks and the other motorcyclist, Orlando Castellon,
occurred on a sharp, blind curve. The State had installed a
warning sign for northbound motorists informing them to reduce
speed to 25 miles per hour to safely negotiate the curve, but there
was no such sign for southbound motorists. As a result,
Castellon, who was traveling southbound, failed to reduce his
speed and lost control of his motorcycle as he rounded the curve.
He crossed over the center line and struck Shanks head-on.
Shanks died at the scene.




                                2
             Shanks is survived by his wife, Patricia, an adult son,
Samuel, and two minor children. His wife and adult son
(collectively “respondents”) filed this wrongful death action
individually and on behalf of the minor children.
             After presenting his closing argument, respondents’
counsel, Arash Homampour, moved to discharge Juror No. 7 for
sleeping as he argued. The State’s counsel, Timothy Day, did not
believe the juror was sleeping. Day thought that “[Juror No. 7]
looked annoyed and frustrated at the arguments being made by
[respondents’] counsel, and she rolled her eyes, and she went like
this a few times, closing her eyes with her hands on her
eyebrows.”
             Homampour’s co-counsel, Farzad Yassini, also told
the trial court that Juror No. 7’s eyes were closed during
respondents’ opening and rebuttal arguments and that “[i]t
looked to [him] like she was sleeping.” In addition, the court
reporter sent the trial judge a note via the “realtime” system
stating that the juror was sleeping.
             The trial court, which had an obstructed view of the
juror, could not make a finding that Juror No. 7 was actually
sleeping, as opposed to listening to the argument with her eyes
closed. Consequently, the court declined to discharge the juror.
             The jury deliberated for about 90 minutes before
being excused for the day. The following day Juror No. 2 called
the trial court to inform it that one of the other jurors was not
adequately deliberating. After discussing the issue with the
parties, the court determined there was a sufficient basis to
inquire into Juror No. 2’s complaint about the other juror. Before
making its inquiry, the court stated that it planned on asking
questions similar to those set forth in Cleveland, supra,




                                 3
25 Cal.4th 466, and then specifically outlined the “leading”
questions it planned to ask. The State’s counsel said he thought
the court should delay the inquiry to allow for more deliberations
but did not object to the questions or suggest different ones.
             Prior to questioning Juror No. 2, the trial court told
the juror that it was “absolutely critical” that “[w]e can’t know
how any jurors are voting.” The court explained to the juror that
it did not want her to disclose “which way you are leaning” or
“how any other jurors are leaning.” The court stated, “I’m going
to ask you a lot of leading questions, yes-or-no questions to try
and steer clear of you telling me anything about what you or
other members of the jury think about the case.”
             In response to the trial court’s questions, Juror No. 2
identified Juror No. 7 as the juror who had “expressed a fixed
conclusion [about the outcome of the case] at the beginning of
deliberations.” When the court asked whether Juror No. 7 had
listened to the views of other jurors, Juror No. 2 responded, “Can
I say not well?” The court inquired, “And by ‘not well,’ do you
mean in terms of her giving feedback?” The juror said, “Yes.
Just very adamant.” The juror also identified Juror No. 1 as
another juror who had “raised concerns” about Juror No. 7.
             After conferring with counsel, the trial court asked
Juror No. 2 if it was her opinion that Juror No. 7 had prejudged
the case “at the outset of jury deliberations.” The juror
responded, “Yes.”
             Respondents’ counsel requested that the trial court
bring in Juror No. 1. The court asked if the “defense [was]
opposed,” and the State’s counsel responded “No,” although he
thought it would be “better” to bring in the foreperson to “tell us
what his or her understanding of the interactions are.” The court




                                 4
indicated it may do that, but decided to “speak with Juror No. 1
at this time.”
             The trial court asked Juror No. 1 if “there [is] a
member of the jury who made up his or her mind at the very
beginning of deliberations.” Juror No. 1 responded, “Yes.” He
told the court that the juror’s opinion had been stated as soon as
deliberations began, and that he believed that “this juror had
prejudged the case.” Juror No. 1 identified the juror as Juror
No. 7.
             After Juror No. 1 left the courtroom, the trial court
asked the parties whether they were requesting that the court
“engage in any additional investigation.” Respondents’ counsel
said “[n]ot from plaintiffs” and requested that the court “excuse
Juror 7 and replace her with an alternate.” The State’s counsel
responded: “We believe that we should be speaking with the
foreperson to understand what the overall jury feeling is as the
person in charge of the panel.”
             The trial court granted the request to discharge Juror
No. 7 without conducting any additional inquiry. The court
stated: “I do note for the record, less than a week ago, the
California Supreme Court decided on August 24th, People versus
Williams [(2015) 61 Cal.4th 1244], which is a case that addressed
juror misconduct for sleeping during trial, and it raised my
concerns in isolation. At the time, I didn’t think it rose to the
level of good cause, but combined with the comments of . . . Juror
No. 2, and . . . Juror No. 1, I think the Court now has good cause
and needs to discharge Juror No. 7. It all dove-tails together.
You know, she was not paying attention during plaintiffs’ closing.
The jurors don’t know that we had a concern about that. These
two jurors have no way of knowing that we, the Court, counsel




                                5
was concerned about whether Juror No. 7 was paying attention.
And right out of the [chute], they have a concern with Juror No. 7
paying attention and participating in jury [deliberations]. I just
don’t think that’s a coincidence. I just don’t. I think . . . we have
crossed the threshold where now there is good cause to discharge
Juror No. 7. I think it would be error and abuse of discretion for
the Court to not do so.”
              As for conducting a further investigation, the trial
court noted: “I [have] read the cases. I asked the very limited
questions I think were appropriate. I’ve given my reasons for not
opening up Pandora’s box and marching every juror in here,
including the foreperson. Again, the case law tells me to be as
limited as I can and, at the same time, do enough of an
investigation to resolve the matter, and the Court believes that
it’s done so.” The court further stated: “And for the benefit of
any higher court, you know, I would hope a higher court would be
mindful of the fact that, sure, we could march in every other
juror, including the foreperson and conduct an autopsy on this
case and, you know, mistry it, and interfere with jury
deliberations in a way that I do not think would comport with
justice.”
              The trial court replaced Juror No. 7 with an alternate
and instructed the jury to begin its deliberations anew. The jury
reached a verdict in favor of respondents that same day. It
unanimously found that the State’s highway was in a dangerous
condition at the time of the accident, that the State was on notice
of the dangerous condition, and that the dangerous condition was
a substantial factor in causing harm to respondents. The jury
unanimously awarded Patricia Shanks total damages of $6
million. The $8.1 million damage award to the children was by




                                  6
an eleven-to-one vote. The jury unanimously found that
Castellon was negligent, and by a nine-to-three vote allocated 90
percent of the fault to the State and 10 percent to Castellon. The
verdict against the State totaled $12,690,000.
             The State moved for a new trial. It submitted a
declaration from Juror No. 7 in which she stated she was not
sleeping during respondents’ closing argument. She declared:
“I had my eyes closed and was listening to Mr. Homampour’s
closing argument. I closed my eyes briefly because I was not
feeling well. I listened to all statements by Mr. Homampour
while my eyes were closed, and I never was asleep. I listened to
the entirety of the closing argument as well as the entirety of the
closing argument for the State. I also listened to all evidence
presented during the case.”
             Juror No. 7 also said her alleged unwillingness to
deliberate was “not true.” She stated: “I had an opinion going
into deliberations, which was that the [S]tate was not liable, but
had not made up my mind. I never expressed an unwillingness to
deliberate, discuss or consider the evidence of the case.”
             Juror No. 7 noted that after the jurors had retired for
deliberations, they had taken a preliminary vote: “3 for [the
State], 1-2 undecided, and 6-7 for the plaintiffs.” Juror Nos. 1
and 2 voted against the State, while Juror No. 7 voted for the
State. During the course of the trial, Juror No. 7 discovered that
Juror Nos. 1 and 2 “were carpooling to the trial every day, and
had become very friendly.” Juror No. 7 was “appalled to think
that a juror could get another juror dismissed because they had
opposing views.”
             The trial court denied the State’s new trial motion. It
found that the discharge of Juror No. 7 was proper and that the




                                 7
State did not meet its burden of showing that Juror Nos. 1 and 2
were biased against Juror No. 7. The State appeals.
                             DISCUSSION
                         A. Standard of Review
               The California Constitution guarantees the right to a
jury trial in both civil and criminal cases. (Salisbury v. County of
Orange (2005) 131 Cal.App.4th 756, 764.) Pursuant to article I,
section 16 of the California Constitution, trial by jury is “‘an
inviolate right,’” “‘a basic and fundamental part of our system of
jurisprudence. . . . As such, it should be zealously guarded by the
courts . . . .” (Cohill v. Nationwide Auto Service (1993) 16
Cal.App.4th 696, 699; see Glage v. Hawes Firearms Co. (1990)
226 Cal.App.3d 314, 322 [“civil litigants are no less entitled to a
fair trial than criminal defendants”].) Consequently, the
standards governing excusal of jurors during trial are common to
both criminal and civil cases. (Code Civ. Proc., § 233; Pen. Code
§ 10891; see Cleveland, supra, 25 Cal.4th at pp. 474-475; Boeken,
supra, 127 Cal.App.4th at p. 1686.)

      1 Code of Civil Procedure section 233 states: “If, before the
jury has returned its verdict to the court, a juror becomes sick or,
upon other 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. If any alternate jurors have been selected as
provided by law, one of them shall then be designated by the
court to take the place of the juror so discharged.” Penal Code
section 1089 similarly provides: “If at any time, whether before
or after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found
to be unable to perform his or her duty, or if a juror requests a
discharge and good cause appears therefor, the court may order
the juror to be discharged and draw the name of an alternate,
who shall then take a place in the jury box, and be subject to the




                                  8
              A trial court has authority to discharge a juror upon
good cause shown to the court that the juror is unable to perform
his or her duty. (Code Civ. Proc., § 233; Pen. Code § 1089.) An
appellate court reviews such a determination for abuse of
discretion. (People v. Marshall (1996) 13 Cal.4th 799, 843;
Boeken, supra, 127 Cal.App.4th at p. 1686.) This discretion,
however, is not unfettered. (People v. Roberts (1992) 2 Cal.4th
271, 325.) Although the trial court's ruling will be upheld if there
is substantial evidence to support it, the juror's inability to
perform as a juror must “‘“appear in the record as a demonstrable
reality.”’ [Citation.]” (Marshall, at p. 843; Boeken, at p. 1686.)
              The “demonstrable reality” standard requires a
higher level of scrutiny than the typical “substantial evidence”
review. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) This
standard protects the parties’ fundamental rights to due process
and to a fair trial by an unbiased jury. (Ibid.) To affirm the
discharge of a juror, the appellate court reviews the entire record
to determine if the trial court actually relied on evidence that
supported a conclusion that bias was established. (Id. at pp.
1052-1053.) The reviewing panel does not reweigh the evidence,
but “must be confident that the trial court's conclusion is
manifestly supported by evidence on which the court actually
relied.” (Id. at p. 1053.)
      B. Alleged Failure to Object to Juror No. 7’s Discharge
              Respondents contend the State failed to object to the
discharge of Juror No. 7 and, as a consequence, failed to preserve
the issue for appeal. (See People v. Ashmus (1991) 54 Cal.3d 932,
987, fn. 16.) We disagree.

same rules and regulations as though the alternate juror had
been selected as one of the original jurors.”




                                 9
             The State advised the trial court that it opposed the
court’s decision to interview only Juror Nos. 1 and 2 in deciding
whether to discharge Juror No. 7. After the court finished
questioning Juror No. 1, the court asked counsel if it should
“engage in any additional investigation.” The State’s counsel
restated his belief that “we should be speaking with the
foreperson to understand what the overall jury feeling is as the
person in charge of the panel.” The court declined to interview
the foreperson, but the State, by requesting an additional
investigation, preserved the issue for review.
             Moreover, it is well established that a party need not
lodge a formal objection when doing so would be futile. (See
People v. Arias (1996) 13 Cal.4th 92, 159; People v. Sandoval
(2001) 87 Cal.App.4th 1425, 1433, fn. 1; Burch v. Gombos (2000)
82 Cal.App.4th 352, 357.) When the trial court refused the
State’s request to interview the foreperson, it made clear that it
believed “we have crossed the threshold where now there is good
cause to discharge Juror No. 7,” and that “it would be error and
abuse of discretion for the Court to not do so.” At that point, any
further objection by the State would have been futile. The court
was satisfied that it had conducted “enough of an investigation to
resolve the matter” and that any further investigation would only
serve to “open[] up Pandora’s box” and “interfere with jury
deliberations in a way that . . . would [not] comport with justice.”
               C. Improper Discharge of Juror No. 7
             The State asserts the trial court abused its discretion
by discharging Juror No. 7 for refusing to deliberate and for
prejudging the case. We agree the record lacks sufficient
evidence to show as a demonstrable reality that Juror No. 7 was
unable to perform her duty as a juror. Under the standards




                                10
discussed and applied in Cleveland, supra, 25 Cal.4th 466, we
conclude the court did not conduct an adequate inquiry into the
allegations against Juror No. 7. As a result, the court’s decision
to discharge her constitutes an abuse of discretion.
                     1. Applicable Decisional Law
              In Cleveland, supra, 25 Cal.4th 466, the jury’s
foreperson sent a note to the trial court on the second day of
deliberations. The note requested “‘an alternate to replace one
juror. One juror does not agree with the charge and does not
show a willingness to apply the law. One juror will not abide [by]
the facts and apply the law.’” (Id. at p. 470.) The trial court
asked all the jurors if anyone was not following instructions. Ten
jurors said “yes.” After questioning each juror individually, the
court determined the holdout juror “‘is not functionally
deliberating’” and seated an alternate in the juror’s place. (Id. at
p. 473.) The Supreme Court affirmed the Court of Appeal’s
reversal of the conviction because the discharge of the holdout
juror violated the defendant’s constitutional right to a unanimous
jury verdict. (Ibid.)
              In so ruling, the Supreme Court observed, “[A] court
may not dismiss a juror during deliberations because that juror
harbors doubts about the sufficiency of the prosecution’s
evidence. [O]ften the reasons for a request by a juror to be
discharged, or the basis for an allegation that a juror refuses or is
unable to deliberate, initially will be unclear. [A] court must take
care in inquiring into the circumstances that give rise to a
request . . . lest the sanctity of jury deliberations too readily be
undermined. But we . . . adhere to established California law
authorizing a trial court, if put on notice that a juror is not
participating in deliberations, to conduct ‘whatever inquiry is




                                 11
reasonably necessary to determine’ whether such grounds exist
[citation] and to discharge the juror if it appears as a
‘demonstrable reality’ that the juror is unable or unwilling to
deliberate. [Citations.]” (Cleveland, supra, 25 Cal.4th at pp. 483-
484.) “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.” (Id. at p. 485.)
              “If some inquiry is called for, the trial court must
take care not to conduct an investigation that is too cursory.”
(People v. Fuiava (2012) 53 Cal.4th 622, 710.) Unlike in
Cleveland, the trial court in this case did not interview all 12
jurors. Its inquiry was limited to interviewing Juror No. 2, the
juror who first complained about Juror No. 7, and then Juror No.
1, whom Juror No. 2 had identified as having “raised concerns”
about Juror No. 7. The court did not interview Juror No. 7, the
foreperson or any of the other jurors. This type of limited
inquiry, particularly after just 90 minutes of deliberation, is
inconsistent with the inquiries routinely performed by trial
courts under similar circumstances. In most instances, the court
will interview all of the jurors before deciding whether a juror is
unable or unwilling to deliberate. At a minimum, it must
interview more than the complaining jurors. (People v. Barber
(2002) 102 Cal.App.4th 145, 150-152 (Barber).) It also should
interview the alleged problem juror to obtain his or her response
to the complaints. (People v. Compton (1971) 6 Cal.3d 55, 60
(Compton).)
             In Barber, all the jurors but one voted to find the
defendant guilty. (Barber, supra, 102 Cal.App.4th at p. 151.) An




                                12
issue arose as to whether the holdout juror was refusing to
deliberate. Of the 11 jurors who voted guilty, six informed the
court that the holdout juror was deliberating in good faith.
Instead of calling those jurors to testify, the trial court only
questioned the five who claimed the holdout juror was not
deliberating. (Ibid.) We determined this was reversible error,
reasoning that to assess whether the juror had engaged in
misconduct, the trial court also had to hear testimony from the
six jurors who believed the holdout juror was deliberating in good
faith. (Id. at pp. 153-154.) We concluded, “The hearing was
fundamentally unfair because the court restricted the evidence
primarily to witnesses supporting the prosecution’s position.
Proceedings that exclude relevant defense witnesses are
constitutionally inadequate. [Citation.]” (Id. at p. 151; see People
v. Feagin (1995) 34 Cal.App.4th 1427, 1436-1437 [court
determined misconduct issue after questioning all jurors].)
             In People v. Bowers (2001) 87 Cal.App.4th 722, 726,
the foreperson notified the trial court of his concern that Juror
No. 4 had prejudged the case before deliberating. Again, the
court questioned all 12 jurors. Although some jurors stated Juror
No. 4 had “made up his mind early on” and had “‘clammed up’” at
times, the jurors conceded that Juror No. 4 engaged in some of
the discussions and made his opinion known. (Id. at p. 732.) The
Court of Appeal reversed the trial court’s decision to discharge
Juror No. 4, explaining, “While there was some evidence Juror
No. 4 was inattentive at times during the deliberations and did
not participate in the deliberations as fully as others, the record
shows this conduct was a manifestation, effectively
communicated to the other jurors, that he did not agree with
their evaluation of the evidence -- specifically their credibility




                                13
determinations. There appears no demonstrable reality that
Juror No. 4 was unable to perform his function and [we conclude]
he did not engage in serious and willful misconduct.” (Id. at
p. 730.)
             In Compton, supra, 6 Cal.3d at p. 60, the trial court
improperly removed a juror without questioning him first. The
juror reportedly had told a third person that he disliked being on
the jury because it was hard to keep an open mind. (Id. at p. 59.)
The court excused the juror based on this ambiguous remark,
electing not to “question the person most likely to know [its]
meaning, [the juror] himself.” (Id. at p. 60.) The Supreme Court
determined that because the evidence did not resolve the
ambiguity in the juror’s remark, the juror’s inability to serve was
not shown as a demonstrable reality. The trial court was not
entitled to resolve the ambiguity by presuming the worst of the
juror. (Ibid.; People v. Franklin (1976) 56 Cal.App.3d 18, 25-26;
see People v. Burgener (1986) 41 Cal.3d 505, 520-521 [trial court
abused its discretion by questioning only the jury foreperson
regarding the possible misconduct of another juror, and by not
questioning the juror at issue], overruled on another ground in
People v. Reyes (1998) 19 Cal.4th 743, 753.)
             In People v. Allen and Johnson (2011) 53 Cal.4th 60
(Allen), two jurors informed the trial court that another juror,
Juror No. 11, had prejudged the case while evidence was still
being presented. (Id. at p. 65.) Juror No. 11 denied having made
up his mind and voted “‘undecided’” during a preliminary vote on
the fourth day of deliberations. (Id. at p. 66.) After a lengthy
investigation, in which the trial court questioned each juror
individually, the court concluded Juror No. 11 had prejudged the
case and was relying on evidence not presented at the trial. The




                                14
court discharged him and seated an alternate juror. The
reconstituted jury found the defendants guilty and later returned
death verdicts. (Id. at p. 69.)
             The Supreme Court reversed. (Allen, supra, 53
Cal.4th at p. 79.) It determined it is not improper for a juror to
hold a preliminary opinion that a party’s case is weak, “so long as
his or her mind remains open to a fair consideration of the
evidence, instructions, and shared opinions expressed during
deliberations.” (Id. at p. 73.) The record did not demonstrate
that Juror No. 11 “refused to listen to all of the evidence, began
deliberations with a closed mind, or declined to deliberate.”
(Ibid.) “The reality that a juror may hold an opinion at the outset
of deliberations is . . . reflective of human nature.” (Id. at p. 75.)
Though Juror No. 11 appeared to hold a strong opinion about the
prosecution’s case, he participated in deliberations. Expressing
opinions forcefully is not evidence of prejudgment or of a failure
to deliberate. (Id. at p. 74.)
             Finally, Boeken, supra, 127 Cal.App.4th 1640, is an
example of a civil case in which the trial court conducted an
adequate inquiry before discharging a juror. The foreperson had
sent a note to the court indicating that Juror No. 5 was not
participating in the discussion and was “‘sit[ting] away from the
table and read[ing] her [B]ible instead of contributing to the
group conversation.’” (Id. at p. 1686.) In response to the note,
the court reread to the jury the instruction stating that all jurors
should participate in all deliberations. (Ibid.) After receiving
another complaint from the foreperson, the court interviewed
Juror No. 5 in chambers. Juror No. 5 denied that she had been
reading her Bible during deliberations and also denied that she




                                 15
sat away from the table, failed to listen or slept during
deliberations. (Ibid.)
               When the trial court received another complaint from
the foreperson, it questioned each juror individually in chambers.
From these interviews, the court found that Juror No. 5 had
“separated herself physically from the other jurors, did not pay
attention to the deliberations and, instead, slept or read a novel,
the Bible, or both, throughout the two days . . . she was a member
of the deliberating jury.” (Boeken, supra, 127 Cal.App.4th at
p. 1688.) Based on these findings, the Court of Appeal concluded
that there was a demonstrable reality that Juror No. 5 had
refused or was unable to deliberate and that the trial court had
not abused its discretion in discharging her. (Ibid.)
                               2. Analysis
               Here, the trial court’s inquiry was unlike the one in
Boeken and more like the one in Barber. The court only elicited
evidence from two jurors, who coincidentally sat next to each
other during trial, who carpooled together and who “had become
very friendly.” They reported that Juror No. 7 “adamantly”
expressed her opinion at the outset of deliberations. This, in and
of itself, is not evidence of prejudgment or a failure to deliberate.
Indeed, when the court asked Juror No. 2 about how Juror No. 7
was listening to the views of other jurors, she responded, “Can I
say not well?” Decisional law makes clear that deliberating “not
well” is an inadequate basis for removal of a juror for failure to
deliberate. (Cleveland, supra, 25 Cal.4th at p. 485 [“that a juror
does not deliberate well or relies upon faulty logic or analysis . . .
is not a ground for discharge”].) This answer alone should have
prompted the court to conduct a further inquiry before removing
Juror No. 7 from the panel.




                                 16
              Moreover, the record reflects that Juror Nos. 1 and 2
did not agree with Juror No. 7’s initial opinion that the State was
not liable. By only considering their views of Juror No. 7’s
alleged unwillingness to deliberate, the trial court “obtained an
incomplete version of Juror No. [7]’s participation from those
most likely to harbor resentment against [her].” (Barber, supra,
102 Cal.App.4th at p. 152.) In other words, the court’s “findings
were derived from a stacked evidentiary deck.” (Id. at p. 153.)
              We are not unsympathetic to the quandary a trial
judge faces when confronted with complaints of juror misconduct.
He or she must investigate the possibility of misconduct but not
overstep and invade the sanctity of the jury’s deliberations. But
jurors may mistakenly conclude that a juror’s disagreement with
the majority constitutes an inability or refusal to deliberate. The
Supreme Court has noted that “the [trial] court may not
discharge a juror for failing to agree with the majority of other
jurors or for persisting in expressing doubts about the sufficiency
of the evidence in support of the majority view [citation], but
laypersons may not understand this. [¶] It is not always easy for
a juror to articulate the exact basis for disagreement after a
complicated trial, nor is it necessary that a juror do so. As we
have stated, it is not required that jurors deliberate well or
skillfully.” (People v. Engelman (2002) 28 Cal.4th 436, 446
(Engelman).)
              Accordingly, it is the trial court’s duty to make a
sufficient inquiry before discharging a juror during deliberations.
(See People v. Fuiava, supra, 53 Cal.4th at p. 710.) Based on our
review of the caselaw, we conclude that this type of inquiry was
not performed here. At a minimum, the court should have
interviewed Juror No. 7, the foreperson and at least some of the




                                17
jurors who had not complained about Juror No. 7. (See Barber,
supra, 102 Cal.App.4th at pp. 150-152; Compton, supra, 6 Cal.3d
at p. 60.) Only after hearing those views would the court be able
to make an informed decision regarding whether the complaints
from Juror Nos. 1 and 2 were founded on facts rather than on
speculation. As stated in Engelman, “It is difficult enough for a
trial court to determine whether a juror actually is refusing to
deliberate or instead simply disagrees with the majority view.
[Citations.] Drawing this distinction may be even more difficult
for jurors who, confident of their own good faith and
understanding of the evidence and the court’s instructions . . . ,
mistakenly may believe that those individuals who steadfastly
disagree with them are refusing to deliberate or are intentionally
disregarding the law.” (Engelman, supra, 28 Cal.4th at p. 446.)
This is particularly true where, as here, the complaint about the
juror was lodged after only 90 minutes of deliberation.
              We recognize that the trial court also cited Juror No.
7’s alleged inattentiveness during respondents’ closing argument
as a basis for determining she was refusing or unwilling to
deliberate. The court was unable to determine if she was actually
sleeping during the closing. If it had asked her to explain, she
would have said that she was never asleep, that she had listened
to all of the evidence and argument, and that she had closed her
eyes briefly “because she was not feeling well.” But the court,
without any inquiry, assumed that by closing her eyes, Juror No.
7 had already made up her mind about the case. As previously
discussed, the court may not assume the worst about a juror,
especially without giving that juror an opportunity to explain
herself. (Compton, supra, 6 Cal.3d at p. 60.) The speculation
about Juror No. 7 sleeping was not good cause for removal, either




                                18
in isolation or combined with the other two jurors’ accusations
about her engagement in the deliberations. (See People v.
Bowers, supra, 87 Cal.App.4th at p. 731 [“A juror must not be
discharged for sleeping unless there is convincing proof the juror
actually slept during trial”].)
             As our Supreme Court has observed, “A trial court
made aware of the possibility of a juror's misconduct, and
particularly possible misconduct occurring during the jury's
deliberations, is placed on a course that is fraught with the risk
of reversible error at each fork in the road.” (People v. Fuiava,
supra, 53 Cal.4th at p. 710.) We conclude the trial court in this
case did not successfully navigate this course. In the absence of a
manifest showing of misconduct, the court abused its discretion
not only in discharging Juror No. 7, but also in failing to grant a
new trial on the issue of allocation of fault, as discussed below.
                             3. Prejudice
             Unlike in a criminal case, the parties were not
entitled to a unanimous jury verdict. At least nine jurors had to
vote for one side or the other with respect to each question
presented on the special verdict form. (Glage v. Hawes Firearms
Co., supra, 226 Cal.App.3d at pp. 322-323.) The only issue on the
form that was not decided by a unanimous or eleven-to-one vote
was the comparative fault allocation. The jury found by a nine-
to-three vote that the State was 90 percent at fault and that
Castellon was 10 percent at fault for the accident that killed
Shanks. Juror No. 7 stated in her declaration in support of the
State’s motion for new trial that, before her dismissal from the
jury, she was “inclined toward [the State],” and that her initial
vote during deliberations was in the State’s favor.




                                19
              A party shows harm where a “qualified and acting
juror who, by some act or remark made during the trial, has
given the impression that he favors one side or the other” is
improperly discharged. (Hamilton, supra, 60 Cal.2d at p. 128.)
In Hamilton, a capital case, a juror was improperly dismissed
after asking a question that indicated she was considering a life
sentence. (Ibid.) “To dismiss her without proper, or any, cause
was tantamount to ‘loading’ the jury with those who might favor
the death penalty. Such, obviously, was prejudicial to appellant.”
(Ibid; see People v. Delamora (1996) 48 Cal.App.4th 1850, 1856
[prejudice shown where jury deliberated for three days with two
or possibly three holdouts, and after two jurors were improperly
dismissed, jury reached a verdict in three hours].)
              Here, Juror No. 7’s inclination to vote in the State’s
favor renders her dismissal from the jury prejudicial. (Hamilton,
supra, 60 Cal.2d at p. 128; People v. Delamora, supra, 48
Cal.App.4th at p. 1856.) Respondents maintain that even if her
dismissal was improper and prejudicial, the State is only entitled
to a retrial on the issue of apportionment of fault. We agree. It is
undisputed that the only aspect of the jury’s verdict that could
have been impacted by Juror No. 7’s vote in favor of the State
was the apportionment issue. (See, e.g., Schelbauer v. Butler
Manufacturing Co. (1984) 35 Cal.3d 442, 459 [modifying new trial
order on all issues to limit retrial to apportionment where the
only claimed defect in the verdict related to apportionment].) We
therefore remand the matter to the trial court for a retrial on
apportionment of fault.
                            DISPOSITION
              The judgment is reversed in part and the matter
remanded to the trial court for retrial on the issue of




                                20
apportionment of fault between the State and Castellon. In all
other respects, the judgment is affirmed. The State shall recover
its costs on appeal.
             CERTIFIED FOR PUBLICATION.




                                    PERREN, J.
We concur:




             GILBERT, P. J.




             TANGEMAN, J.




                               21
                    Kevin G. DeNoce, Judge
               Superior Court County of Ventura
                ______________________________

           Jeanne E. Scherer, Chief Counsel, Jerald M.
Montoya, Deputy Chief Counsel, and Mark Berkebile for
Defendant and Appellant.
           The Homampour Law Firm and Arash Homampour;
The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and
Respondents.




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