Filed 3/28/19
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                   A152729
v.
PABLO SALINAS-JACOBO,                              (Sonoma County
                                                   Super. Ct. No. SCR673522)
        Defendant and Appellant.

        When a jury foreperson in a criminal trial discloses the jury has reached a verdict
on some counts but has not been able to reach a verdict on others, a trial court must tread
very carefully before it discharges a juror for failing to perform his or her duties under
Penal Code section 1089. At stake is a defendant’s right to due process and a fair trial by
an unbiased jury, and we review a trial court’s decision to discharge a juror in this
circumstance under a “demonstrable reality” test, requiring a showing that the trial court
“did rely on evidence, that in light of the entire record, supports its conclusions” that a
juror was actually unable to perform. (People v. Armstrong (2016) 1 Cal.5th 432, 450-
451 (Armstrong).) In this appeal, based on questioning of three jurors, including the juror
who was eventually discharged, the trial court discharged a juror for considering
evidence outside the record, considering punishment, and not following the jury
instructions. We conclude that these failures to perform the juror’s duty were not shown
as a demonstrable reality, and we reverse the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
The Collision
        On the afternoon of November 8, 2015, defendant Pablo Salinas-Jacobo’s red Ford
Mustang collided with a Chevy Traverse and a Dodge Charger near the driveway to the

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Merriam Winery on Los Amigos Road in Sonoma. The passenger in the Dodge Charger
died four days later from injuries sustained in the crash, and the driver suffered a severe
shoulder injury. The passenger in the Chevy Traverse developed a stiff neck and
shoulders, and had headaches for the next two or three months.
       A California Highway Patrol officer evaluated the driver of the Dodge Charger for
signs of intoxication and found none. Not so with defendant, who admitted he had drunk
a “cup of bourbon.” He claimed that someone had “cut me off.” Defendant showed
signs of intoxication, and a preliminary alcohol screening test showed his blood alcohol
content (BAC) was 0.183 and 0.171. A blood draw shortly more than two hours after the
collision showed a BAC of 0.185.
The Charges
       Defendant was charged in a five-count information with murder (Pen. Code, § 187
– count 1), gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))
– count 2), driving under the influence of alcohol (DUI) causing injury (Veh. Code,
§ 23153, subd. (a) – count 3), driving with a BAC of 0.08 percent or more causing injury
(Veh. Code, § 23153, subd. (b) – count 4), and driving with his driving privilege
suspended due to a prior DUI conviction, having previously been convicted of the same
offense (Veh. Code, § 14601.2, subds. (a) & (d)(2) – count 5). As to the DUI charges in
counts 3 and 4, the district attorney sought enhancements for bodily injury (Pen. Code,
§ 12022.7, subds. (a) & (b)) and excessive BAC (Veh. Code, §§ 23558, 23578). The
vehicular manslaughter (count 2) and the DUI charges further alleged that defendant had
suffered two prior DUI convictions.
The Trial
       There were more than 30 witnesses and 70 exhibits over the course of a more than
two-week trial.
       According to an expert in accident reconstruction and investigation, the Dodge
Charger was traveling southbound in the southbound lane of Los Amigos Road, with the
red Ford Mustang traveling behind it. The Dodge Charger slowed in the last five seconds
before the crash to make a left hand turn into the winery driveway. At the same time, the

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Chevy Traverse was preparing to make a right turn from the winery driveway, into the
northbound lane of Los Amigos Road. As this was happening, the red Mustang moved
into the northbound lane in an attempt to drive around the Dodge Charger before it made
its turn. The Dodge Charger began its left turn as the Chevy Traverse made its right turn,
and the Ford Mustang collided with the Chevy Traverse and broadsided the Dodge
Charger. After the impact, the Dodge Charger spun and traveled about 75 feet south; the
Mustang traveled 55 feet and stopped in the southbound lane.
       The Dodge Charger had an electronic data recorder (EDR) which records data at
the time of a collision, and another expert testified on interpretation and retrieval of such
electronically stored data. The Dodge Charger’s EDR showed that about five seconds
before the collision, it was traveling at about 28 miles per hour, and then slowed to about
eight miles per hour as it turned left into the driveway of the winery. The EDR did not
show whether the Charger’s left-turn signal was activated at the time.
       A criminalist testified that, extrapolating from defendant’s blood test results,
defendant’s BAC at the time of the crash was between 0.221 and 0.225 percent, and that
defendant would have had to consume a minimum of 9.7 drinks to reach a 0.225 BAC.
       Two witnesses testified that they had seen a red Ford Mustang driving recklessly
shortly before the fatal collision.
       Defendant did not testify.
Jury Deliberations
       March 28
       The jury began deliberations in the late afternoon on March 27. The next day at
2:50 p.m., the foreperson sent the judge a note. Among other things, he asked: “We have
a juror who is difficult to reason with and are having trouble with our discussions. Do
you have any suggestions? We were thinking a check-in to remind us of our duty and
what we are allowed to consider as evidence would be helpful.”
       The trial court called the jury back to the courtroom to respond to two substantive
questions, and then referred the jurors to CALCRIM No. 200 (duties of judge and jury),
CALCRIM No. 222 (evidence), and CALCRIM No. 3550 (the predeliberation

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instruction). The court reread the second and third paragraphs from CALCRIM No. 3550
which instruct that it is “your duty to talk with one another and to deliberate,” and
encourage jurors to “[k]eep an open mind and openly exchange your thoughts about this
case.”
         March 29
         The next day, the jury foreperson sent the court another note at 3:30 p.m.
indicating the jury had reached a verdict on counts 3, 4, and 5 but could not “come to a
consensus” on counts 1 and 2. The trial court called the jury back to the courtroom again
and then read CALCRIM No. 3551, describing it as an additional instruction that would
provide the jury “some information for you to consider and for you to proceed at this
time.”
         At the end of the day’s deliberations, with the entire jury present, the trial court
asked whether the jury had reached a verdict on all counts, and the foreperson responded,
“I, based on our current deliberations and conversations, see a very difficult road to
reaching consensus.”
         April 3
         The next day of deliberation at 11:30 a.m. the foreperson wrote a note stating the
jury was deadlocked 11-1 on count 2, “we do not see a way forward,” and “[f]rustrations
are running high.” The foreperson wrote a second note at 11:45 a.m, this one headed
“Personal Note,” and stating, “I do not feel the dissenting juror is basing their dissent on
reasonable doubt and is having trouble stating their side other than ‘I have to consider the
whole picture, and to me there is a doubt.’ We have tried to describe responsibility &
process and the requirements of a juror, but have made no progress for 2 days.”
         The court discussed the notes with counsel, observing that the jury had been
deliberating for two full days, plus two hours that morning. The trial court brought the
foreperson into the courtroom for questioning. The foreperson reported that all the jurors
had had an opportunity to express their views and that no juror had refused to participate
in the discussion or deliberations. The jury had taken “probably five” votes on the
charges. Regarding his “Personal Note,” the foreperson said his intent was “to try and

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convey in a short amount of words what I believe has been a very solid good faith
amount of effort by all members of the jury, the majority, and the minor [sic] on each of
the, you know, decisions we are trying to come to. But what the frustration and the
tension there is that we do not seem to be able to come to a consensus. [¶] And I
commend all the members of the jury, because it has been a very invested and involved
process by all of them, and we are very frustrated that we can’t come to an agreement.
And I do not see a reasonable way forward to break that deadlock.”
       The trial court asked whether any member of the jury stated that they were
refusing to follow the law. The foreperson responded no.
       The trial court then had the entire jury brought into the courtroom. The foreperson
did not believe further deliberations, instruction from the court, or read back of testimony
would assist the jury. Nor did the foreperson think it would be useful for each attorney to
make brief additional closing arguments. No member of the jury indicated any of these
additional steps would be helpful. 1
       The jury returned three guilty verdicts, and the verdicts were read by the clerk.
But then it was discovered that the verdict forms with the appropriate enhancement
allegations had not been given to the jury, so the jurors’ verdicts had not addressed the
enhancements. Outside the presence of the jury, the trial court told counsel it wanted the
jurors to complete the proper verdict forms on counts 3, 4, and 5, and then it intended to
declare a mistrial and deadlock on counts 1 and 2. The trial court gave the jury the
appropriate verdict forms for counts 3, 4, and 5, explained the new verdict forms, and
sent the jury back to deliberate.
       At 3:40 p.m. the foreperson sent a note asking to “discuss the particulars of the
deliberation” with the trial court, and elaborating, “I have concern with this process. One
juror and I would like to speak with you.” The court responded, “at this time, I will not
speak with you or another juror individually.”

       1
        The foreperson also reported that about four votes had been taken on count 2
(vehicular manslaughter), and three or four votes on count 1 (murder). The vote on count
1 was 10 to 2; on count 2 the most recent vote was 11 to 1.

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       At 4:25 p.m., the foreperson sent in another note, stating that the jury was
unanimous on one enhancement. The note went on, “We cannot come to agreement on
the remaining enhancement. [¶] There is not a chance of reaching agreement unless you
discuss with individual jurors.”
       After consulting with counsel, the trial court brought the jury into the courtroom.
The foreperson said there was a unanimous decision on one enhancement. Again, the
trial court asked whether it could assist the jury. The foreperson replied, “I would like to
get detailed in the conflict we’re having, but without getting into details I do not feel like
anything that you mentioned would be of any use in getting us to a unanimous decision.”
The court inquired whether the conflict was “concerning the law and an instruction on the
law.” The foreperson responded, “It’s concerning what we as individual jurors are
allowed to consider or not consider and how broad a scope—what is reasonable doubt
and what is unreasonable doubt. What is, when looking at an enhancement, whether or
not you can question or not question your decisions. It is becoming unfruitful to continue
to deliberate.”
       The trial court responded that the scope of what jurors could consider was
addressed in detail in the jury instructions. The trial court asked the 12 jurors as a group
whether there was anything that would assist them. Juror 10 responded, “I think we are
having an issue with understanding our legal responsibility as a juror. How we are to
apply law and the evidence that has been provided and to make a decision. From my
standpoint I think that not all of us are understanding how we should be applying the law
and how we should be making decisions, which I’m not sure if this Court is even able to
clarify that for us. [¶] Reading the instruction for us has not helped, and I would ask that
you have a separate conversation perhaps where our foreman can be more frank with
what the real problem is.”
              Questioning of Foreperson
       After conferring again with counsel, the trial court asked the foreperson to remain
in the courtroom. With counsel and defendant present, the trial court asked him “what
you believe, from your perspective, the issue is.” The foreperson responded, “The issue,

                                              6
as I perceive it, is we have a juror [later identified as Juror 11] who, from my perspective,
is not willing to perform their role as a juror. And I see the role as taking facts, applying
the facts to the law and making a judgment whether they have reasonable doubt or
unreasonable doubt as to a guilty or innocent verdict. [¶] And I feel personally that one
juror is applying different standards based on what charge they’re considering and cannot
justify to the rest of the group where and how they come to these standards that they call
‘higher standards.’ [¶] That they are espousing positions that are cognitively dissonant.
They can’t think one thing and another thing are true at the same time, and so I can get
more specific if you would like, but if we as a group have voted unanimously that
someone is guilty of causing the injury and then—and a very clear but separate
subsection is that great bodily injury or not, and they decide that they can’t answer that
question because now things are unclear to them and they don’t want to take the specific
question that the law is asking and answer that specific question. They want to then
relitigate their concerns about the whole case.
         “And so we are approaching it in as many avenues as we can, and ways we can,
and I believe we have entered into the adversarial phase now where it feels like we’re
picking on this juror because we’re trying to reason in what—I’ve tried to mitigate or
manage discussions as a thoughtful and open and fair communication, and I think we’ve
done an okay job there, but the juror is having a very hard time explaining where their
reasonable doubt is coming from and pointing to the facts that are giving them reasonable
doubt.
         “And the concerning things to me and why we’ve continued to push in there is
because it feels like they want to say I’m entitled to my opinion and I can hang a jury
because I feel like it, and I don’t believe that is the role of a juror and I don’t believe that
that is an appropriate way to approach our job in there. So I have expressed that verbally
to them, other jurors have also expressed that verbally.
         “So, it feels like when we bring these remaining charges or enhancements that
their reluctance to make what I feel is a smaller technical decision on these enhancements


                                               7
is related to two days of arguing on a more general topic, and I—and we as a jury have
tried and I don’t see a way to get past this.”
       The trial court then asked a series of questions, which we restate almost verbatim:
       “THE COURT: . . .You’ve used a phrase that one of the jurors had used the term
that they’re going to follow higher standards and not the law. From your perspective, has
one of the jurors either by specific words or by statements led you to conclude that
they’re not following the law?
       “[FOREPERSON]: That was not the specific words to indicate that but, yes, by
general statements and by the way they are arguing their position, yes.
       “THE COURT: Did one of the jurors state they are not going to follow the
Court’s instruction but they will follow a higher standard?
       “[FOREPERSON]: They didn’t say they won’t follow the Court’s instructions,
but in repeated conversations they continue to say I need to apply different standards
when you ask the question one way, and that now I have to take into consideration other
factors because now this is more serious and they can’t clearly articulate what they mean.
       “THE COURT: Now you’ve also used the term from your perspective the juror
has stated or has engaged in a reluctance to decide. Have any of the jurors refused to
vote on any of the ballots?
       “[FOREPERSON]: [Juror 11] is refusing to vote and then when pressed and then
would reluctantly make a decision.
       “THE COURT: So they did ultimately vote?
       “[FOREPERSON]: Correct.”
       The jury was called back, the trial court told them he might speak to some of them
individually the next morning, and the jury was excused for the day.
       April 4
       The next court day outside the presence of the jury, the trial court told counsel it
intended to ask Juror 10 questions similar to those the court asked the foreperson, and
then question Juror 11. The court stated there was no substantial evidence of juror
misconduct but there was “enough to follow up on.”

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              Questioning of Juror 10
       Following a few general questions about the juror’s “observations during the
process of deliberations,” Juror 10 confirmed that no juror stated they were going to
consider the issue of punishment. The trial court asked whether any member of the jury
stated “that they were not willing to follow the law as I had instructed the jury.” This
discussion followed:
       “[JUROR 10]: Not in those words.
       “THE COURT: Well, are there any words that were used by a juror that led you
to believe and conclude that one or more of the jurors were not willing to follow the law?
       “[JUROR 10]: Yes. . . .
       “[JUROR 10]: One of the jurors said that, if they were to strictly follow the law,
that they would be able to convict; but, because we were jurors, we’re peers, and that’s
why we were selected as jurors; and we’re not lawyers— [¶] . . . [¶] But that he was
unable to do so. And he indicated that, because, that we should be—I’m going to stop
right there, actually.” Juror 10 attributed these statements to Juror 11.
       The trial court urged Juror 10 to continue, which the juror did: “But he was
unable to do so, because he felt that our jobs as jurors was not to just strictly apply the
law, but that we were to consider, we had other considerations to make as well. And one
of those was that he felt that there needs to be, he had a higher standard to hold the
prosecution on charges that were above injury. [¶] For instance, he’s unwilling to—he
stated that he was holding a higher standard for the defendant when you brought in bodily
injury, great bodily injury.” In response to another question, Juror 10 stated that “I
believe that Juror Number 11 believes that his interpretation of following the law is
following the law.”
       Juror 10 told the court Juror 11 had used that phrase “if he were to strictly follow
the law, he would convict, but—” twice. The first time was “a couple days ago” “in
reference to trying to explain his reasoning behind why he was, where his reasonable
doubt came from.”


                                              9
       In response to further questioning, Juror 10 reported Juror 11 saying that “our jobs
were not only to follow the law, because we were a jury of peers, and if we were to
strictly follow only the law, we would be doing so in the capacity of being lawyers,
which we are not; so there are other things to consider, like fault. Like responsibility of
the other parties involved. That there was an accident occurred, more than one person
was involved, so we cannot hold one person solely responsible in a manner such as like a
scapegoat.”
       The court asked whether any juror had said they were going to consider
“something other than the evidence that was received,” and Juror 10 said this about Juror
11: “[B]ecause there was no evidence of a blinker or an indicator, that he felt that that
was evidence in itself; and from the explanations of the witnesses, he has come up with
an entirely different scenario based off of, I’m not sure what, of what happened. And he
used that as, I feel he’s using that as evidence as to why he cannot—as to why his
decisions are as they are.”
       Juror 10 also reported that Juror 11 said he “holds a different standard for burden
of proof for any charge that is greater than for a [sic] injury, and that he would need to, in
order to give a verdict of guilty for a charge of, above causing harm, he would need proof
beyond a reasonable doubt that the other party had over 110 percent known, did
everything perfectly.”
              Questioning of Juror 11
       The trial court then brought Juror 11 to the courtroom for questioning, asking for
his “observations and perspective about the deliberations.” Juror 11 confirmed that all
jurors had been participating in discussing the case and that no jurors had refused to
deliberate on the questions before the jury.
       Asked whether any juror had said they were considering punishment in their
deliberations, Juror 11 answered, “[u]nfortunately, yes.” He continued, “But it came
about like . . . how could you let somebody go that’s like that. . . . I think the victim is not
getting, you know, the right justification here. And that type of thing. Which I thought
was your responsibility, Honorable Judge. The punishment part of it. Ours is just to

                                               10
decide if, according to the law and charges, you know, the accused [is] guilty or not
guilty. That’s all we should do there. But I felt absolutely that the discussion really
turned to that level, which I did not feel comfortable.”
       Asked to clarify whether potential punishment was being discussed or the impact
of the case on the victims, Juror 11 responded, “Both, as a matter of fact, because it is
kind of associated. If we let the accused go unpunished, the victim don’t get the just [sic]
there.” Asked to clarify further whether any juror discussed the punishment the
defendant might receive, Juror 11 responded, “Not specific punishment as such; but in
general, the punishment . . . . What is the outcome of it if we let go somebody free. But
not any specific punishment that, you know, this count is going to provide . . . .”
       Juror 11 told the court he had not considered and discussed the punishment the
defendant might receive as a result of the jury’s verdict.
       When asked whether Juror 11 heard any member of the jury state they were not
going to follow the law as instructed by the judge, Juror 11 stated, “Not outright, no.”
Juror 11 also answered that no one, including him, ever made that statement.
       The court then asked whether anyone (including Juror 11) ever stated that they
were going to apply a different burden of proof other than as instructed by the court.
Juror 11 responded, “This thing was raised as an issue during deliberation; that, for one
and same charges, when it is elaborated, for certain counts, you’re using one set of rules,
and then you’re looking to, into more details. But that was I think part of the deliberation
process.”
       The trial court asked, “Did you ever use the phrase that you are going to follow a
higher standard? Did you personally ever use that phrase?” Juror 11 answered, “No.
But it was mentioned by others.” When the trial court asked which jurors used the phrase
“higher standard,” Juror 11 replied that it came from “different” jurors and he couldn’t
specify one single juror.
       The trial court asked whether Juror 11 had ever stated during deliberations, “if you
were to strictly follow the law, you would find the defendant guilty on all charges?”
Juror 11 replied, “Not that I could recall. No.” The court then asked the question again,

                                             11
“At any point during the deliberations, did you ever use the phrase that, if you were to
strictly follow the law, you would find the defendant guilty on the charges, but that you
have, and the jury has a different duty, and you were going to follow a different standard
other than following the law?” Juror 11 said no.
       The trial court continued, “At any point in time during the deliberations, did you
ever hear any juror use the phrase, ‘our job is different than described by the Court, and
our job as jurors is to follow a higher standard’? Did you ever hear that phrase?” Juror
11 again said no.
       The court asked, “Did you ever hear any member of the jury use the phrase that,
with regard to the enhancements, and the level of injury, that, if the jury were discussing
a more serious injury to any of the three victims, that, if it’s a more serious injury, the
jury has to use a different standard in reviewing that injury?” The juror answered, “Yes, I
heard them.” Juror 11 went on to state that “[e]ssentially I made that statement. And I
said that . . . this is a serious charge. We need to look into the whole picture, rather than,
you know, saying it’s a simple thing. But look into all the evidences [sic], and eliminate
all the potential, you know, doubts here. Just because it’s a serious case here.”
       Juror 11 denied stating he “felt that the jury would have to be 110 percent sure”
before they could find the prosecution met its burden of proof and denied hearing anyone
else refer to “110 percent sure.”
       When the trial court asked whether anyone said the jury would have to be “100
percent sure on any of the charges before they could find the People have met their
burden of beyond a reasonable doubt,” Juror 11 responded, “In that line, but not the way
you’re saying that 100 percent. Like you know, we have to be sure that there is no
reasonable doubt. But the word 100 percent as you were mentioning, not like that.”
       Then the trial court turned to whether any juror had stated they are “considering
other information or other evidence aside from the evidence” received in the trial. Juror
11 said no. When the trial court pressed further with whether Juror 11 himself had ever
stated that “even though the evidence wasn’t received here in court, [you] believe there
was evidence of other facts” that he was going to consider, he still said no.

                                              12
       Then the trial court drilled down to specific pieces of evidence, asking whether
Juror 11 ever made a “statement with regard to whether you believed there was any
evidence or lack of evidence of a blinker being used, a turn signal being used by any
driver in this case.” This discussion about jury deliberations ensued:
       “[JUROR 11]: It, I did question in that line, but maybe not exactly what you’re
saying. The question was raised.
       “THE COURT: Well, whether you said it in jury deliberations or not, did you
ever, yourself, consider information, facts, or what I might describe, well, information or
facts that were not presented as evidence in this case?
       “[JUROR 11]: If I talk in terms of blinkers, yes. Because I, I raised the issue, was
the blinker on? Type of thing. Because I think I saw in some instruction that that is one
of the things that you should consider also.”
       Then the court moved on to whether Juror 11 was following the law, asking
whether he had followed “any concept of law other than what I have instructed you on.”
Juror 11 firmly denied this (“No, I followed your instruction”) and the follow-up question
on whether he had applied a different definition of reasonable doubt (“No”).
       The final question to Juror 11 was whether he had ever made the statement that
“because the members of the jury are not attorneys, that they have a different job and a
different role to play other than the role that I have defined for jurors in this case.” Juror
11 answered no.
              Second Questioning of Foreperson
       The trial court questioned the foreperson some more. The trial court asked
whether the foreperson had heard any juror state “if they were to strictly follow the law,
that they would be able to convict.” The foreperson attributed this statement to Juror 11.
The trial court followed up and asked whether Juror 11 “further state[d]” that he was
“unable” to convict because “he felt your job as jurors was not to strictly apply the law?
Did you hear Juror Number 11 make a statement, that statement, or a statement that’s the
same or similar?” The foreperson answered, “I believe he said something to the effect
that, we, something to that effect that, sure, everyone, if we just go by the facts, it’s easy,

                                              13
we can convict on all the counts. But we are jurors, and we are his peers, and it is our job
to look at more than that. We have to take everything into consideration, and then it’s not
so easy, and things to the effect. Where we as a group tried to focus on the first part of
that sentence, to let him understand how we thought he was presenting himself. But yes,
he did make statements on multiple occasions, because we were rehashing the same
ground multiple times.”
        The court asked whether Juror 11 ever stated what more information should be
considered other than the facts. The foreperson replied, “He did, but it tended to vary
based on which point we were discussing. But he was indicating he didn’t like the way
investigations were done, and he would have done it differently, and he was indicating
that he thinks your responsibility for driving safely goes up or down whether or not you
have a passenger in the car, and that that was somehow affecting how you would decide
a, you know, one of the points we were considering. He continued to be very convinced
that because multiple vehicles were involved, that he could not assign blame to anyone,
and was very concerned that the, specific act of assigning a guilty verdict would absolve
other people that he thought should have responsibility in a matter. [¶] He continued to
try to introduce new scenarios that were not introduced by the prosecution, the defense or
any of the witnesses, about the behavior of the vehicles on the road, and continued to
insist that because we didn’t have blinker information on the [EDR’s], that the [EDR’s]
were not complete, and he was upset that we didn’t have information about whether
blinkers were on. [¶] There are probably more, but that’s much as I can remember right
now.”
        Then the trial court turned to the question of whether any juror discussed the issue
of punishment. The foreperson replied that “Juror Number 11 brought it up, and it was, it
may have been mentioned once or twice; but each time somebody started to make that
mention, the group would very quickly remind everyone that, you know, we are not
allowed to discuss punishment, and that is not to be part of our consideration.”
        The court then asked about whether any juror stated they were going to apply a
different burden of proof than instructed by the court. The foreperson replied: “From my

                                             14
perspective, their statements directly said it and continued to imply it; but during these
conversations, it would start out saying— [referring to Juror 11], ‘We have to look at all
of,’ you know, ‘We have to look at everything.’ And ‘For me, it’s, it has to be more
serious,’ or “I have higher standards.’ And then as soon as we would press him, to say,
‘You can’t hold anything to different standards than what the law allows,’ he would
immediately say, ‘Yes, yes, and it’s reasonable doubt, because I have reasonable
doubt.’ ” [¶] So he realized that his statements, after we pointed it out to him, were
possibly either misstating his intent, or not legal; and then would, in the same series of
arguments, go back to, ‘It’s my reasonable doubt, and I am allowed to have that.’
[¶] And so our actions in the jury room were to encourage him to explain his reasonable
doubt, and to explain which parts of the facts and the law were creating that for him. And
he could never do that specifically.”
       In response to a question, the foreperson also reported, “. . . Juror Number 11, you
know, said something to the effect that we have to eliminate all possible doubt. And
personally, I feel he is trying very hard to justify a position that he wants to take morally
and consciously, but not a position that is supported by the facts. And during the
statements, the rest of the room hears that language and immediately knows that it is
incorrect; and so, at those times, when things like that are uttered, objections are raised
from the rest of the jurors, and the statement is woven into something that sounds more
like, ‘Yes, yes, what I mean is reasonable doubt, reasonable doubt.’ And so—but things
to that nature have been said over the course of the days.”
       The foreperson never heard any member of the jury talking in terms of
percentages, that they had to be 100 or 110 percent sure before delivering a verdict.
Juror 11 Is Discharged
       The court announced its tentative decision to remove Juror 11 for juror
misconduct. Defense counsel argued it was inappropriate to remove Juror 11 because the
juror indicated he was following the court’s instructions and believed there was
reasonable doubt. She urged that Juror 11 “wanted to delve deeper into the analysis, and
not just quickly make a decision” but this did not mean Juror 11 would not follow the

                                             15
law. She argued Juror 11 had not considered information outside the evidence in
deliberations, he merely considered the lack of evidence. In sum, defense counsel argued
that Juror 11 had done nothing inappropriate; this was simply a case where a majority of
jurors believe one thing, and Juror 11 believes something different.
       In response, the trial court clarified that he was also taking into account the
statement of Juror 11 himself, including “the way he answered the Court’s questions, the
times he paused, as well as his statement to what I believe is one of the most critical
questions, when I had asked him specifically if he had ever used the phrase, if he were to
strictly follow the law, he would find the defendant guilty, his response was, he did not
recall. Whereas the other two jurors specifically recalled that [Juror 11] had used that
phrase.”
       The trial court removed Juror 11 from the jury, concluding “I do not find that this
juror has refused to deliberate; but I find the juror has considered information outside of
the evidence that was received into trial. I find the juror has also . . . applied different
and incorrect standards of the burden that the People must meet, and I find the juror has
failed to follow the law, failed to follow the instructions as given . . . by the court.” The
trial court also found Juror 11 considered “the concept of punishment with various
phrases he has used. For example, the more serious the charge, or the consequence, the
higher standard.” The court found the foreperson and Juror 10 more credible than Juror
11 regarding what happened and what was said in the jury room.
An Alternate Juror Is Seated
       An alternate was seated in place of Juror 11. The next day, the foreperson wrote
another note, indicating that the jury had reached unanimous verdicts on counts 2 through
5, but could not reach consensus on count 1, the murder charge, and that no further
discussion or deliberation or anything would be of assistance. After discussion with
counsel, the trial court took all of the verdicts which included true findings on all of the
enhancements, and declared a mistrial on count 1. All that remained was a brief
bifurcated trial on the prior conviction alleged in count 5, for which the jury returned a
true finding.

                                              16
Sentence
       The district attorney indicated that it did not intend to retry count 1, the murder
charge. Defendant was subsequently sentenced to 15 years to life in prison.
                                        DISCUSSION
Standard of Review
       Penal Code section 1089 gives a trial court authority to discharge a juror, “ ‘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 duty . . . .’ ” 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.
Williams (2001) 25 Cal.4th 441, 448.)
       We review a trial court ruling discharging a juror for abuse of discretion, but our
Supreme Court has made clear that this review “involves a ‘heightened standard [that]
more fully reflects an appellate court’s obligation to protect a defendant’s fundamental
rights to due process and to a fair try by an unbiased jury.’ [Citations.] Specifically, the
juror’s ‘inability to perform’ his or her duty ‘must appear in the record as a demonstrable
reality.’ [Citations.]” (Armstrong, supra, 1 Cal.5th at p. 450.)
       Under the demonstrable reality standard, we must do more “ ‘than simply
determining whether any substantial evidence in the record supports the trial court’s
decision.’ (People v. Lomax (2010) 49 Cal.4th 530, 589.) ‘A substantial evidence
inquiry examines the record in the light most favorable to the judgment and upholds it if
the record contains reasonable, credible evidence of solid value upon which a reasonable
trier of fact could have relied in reaching the conclusion in question. Once such evidence
is found, the substantial evidence test is satisfied. . . . [¶] The demonstrable reality test
entails a more comprehensive and less deferential review. It requires a showing that the
court as trier of fact did rely on evidence that, in light of the entire record, supports its
conclusion that [good cause for removing the juror is] established. It is important to
make clear that a reviewing court does not reweigh the evidence under either test. Under
the demonstrable reality standard, however, the reviewing court must be confident that

                                               17
the trial court’s conclusion is manifestly supported by evidence on which the court
actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just
the evidence itself, but also the record of reasons the court provides.’ [Citation.]”
(Armstrong, supra, 1 Cal.5th at pp. 450-451.)
       “Determining whether to discharge a juror because of the juror’s conduct during
deliberations is a delicate matter . . . .” 2 (People v. Cleveland (2001) 25 Cal.4th 466, 484
(Cleveland).) In Cleveland, a jury sent a note to the trial court that a particular juror
“ ‘does not show a willingness to apply the law.’ ” “ ‘One juror does not agree with the
charge and does not show a willingness to apply the law. One juror will not abide the
facts and apply the law.’ ” (Id. at p. 470.) The trial court questioned every juror
individually and concluded the juror in question was “ ‘not functionally deliberating,’
because he refused to respond to ‘specific questions as to elements and facts’ and,
instead, relied upon ‘generalities,’ ” and discharged the juror. (Id. at p. 486.) Our
Supreme Court, however, concluded the juror’s inability to perform did not appear as a
“ ‘demonstrable reality’ ” (id. at p. 484), and thus Cleveland’s right to a unanimous jury
was violated. (Id. pp. 473-474; see also id. at p. 488 (conc. opn. of Werdegar, J.).) The
court explained that “[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 . . . does
not constitute a refusal to deliberate and is not a ground for discharge.” (Id. at p. 485.)
       In People v. Engelman (2002) 28 Cal.4th 436 (Engelman), the Supreme Court
recognized that the judicial task of determining whether a deliberating juror should be

       2
         The inquiry should be “as limited in scope as possible, to avoid intruding
unnecessarily upon the sanctity of the jury’s deliberations,” and should focus on the
jurors’ conduct, rather than on content. (Cleveland, supra, 25 Cal.4th at p. 485.) 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
other committed misconduct, and that no other proper ground for discharge exists.”
(Ibid.)

                                              18
discharged is complicated by the fact that it is “even more difficult for jurors who,
confident of their own good faith and understanding of the evidence and the court’s
instructions on the law, mistakenly may believe that those individuals who steadfastly
disagree with them are refusing to deliberate or intentionally disregarding the law.
Jurors, of course, do not always know what constitutes misconduct.” (Id. at p. 446.) A
juror cannot be discharged 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 (see Cleveland, supra, 25 Cal.4th at pp. 481-484), 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.” (Engelman, supra, 28
Cal.4th at p. 446.)
       Engelman, too, reiterated that courts “must exercise care in responding to an
allegation from a deliberating jury that one of their number is refusing to follow the
court’s instructions.” (Engelman, supra, 28 Cal.4th at p. 445.) The court observed,
“[E]ven though refusal to follow the court’s instructions on the law constitutes
misconduct, a court’s inquiry regarding a juror’s motivations could ‘compromise[e] the
secrecy of the jury’s deliberations,’ and “warned of the risk inherent in ‘permit[ting] trial
judges ‘to conduct intrusive inquiries into . . . the reasoning behind a juror’s view of the
case, or the particulars of a juror’s (likely imperfect) understanding or interpretation of
the law as stated by the judge.’ ” (Id. at p. 445, quoting People v. Williams, supra, 25
Cal.4th at p. 464 (conc. opn. of Kennard, J.)
Analysis
       Defendant contends the trial court abused its discretion in removing Juror 11 from
the jury. We agree.
       Consideration of Evidence Outside the Trial
       The trial court concluded that Juror 11 considered evidence that was not before the
jury. The trial court never identified this extra-record evidence or information, and we
cannot find any. The Attorney General apparently considers the extra-record evidence to

                                              19
be the foreperson’s and Juror 10’s allusions to “new scenarios” and the “behavior of the
vehicles on the road.” This is not persuasive. While it is true that the trial court’s
inquiries into the deliberations revealed that Juror 11 was considering whether the driver
of the Dodge Charger used a turn signal, 3 this was an issue in the case. The driver
testified that it was his habit to use turn signals, and he did so all the time. But the expert
testified that the EDR for the Dodge Charger did not indicate one way or the other
whether the turn signal was on before the vehicle turned into the driveway of the
Merriam Winery. And whether the blinker was on or off was argued by both counsel in
closing. 4
       Because the presence or absence of evidence about the blinker was an issue in the
case, deliberating as to its significance was not a basis to discharge Juror 11. When Juror
11 was asked whether he was “considering other information or other evidence aside
from the evidence” received in trial, he answered no. There was no substantial evidence
in the record to show otherwise.
       Consideration of Punishment
       Another reason the trial court gave for Juror 11’s discharge was that he
“considered . . . the concept of punishment” in his deliberations. This is not borne out in
the record by substantial evidence.




       3
         Recall that Juror 10 said that Juror 11 said that “because there was no evidence
of a blinker or indicator, that he felt that that was evidence in itself . . . .” And the
foreperson also stated that Juror 11 “continued to insist that because we didn’t have
blinker information on the [EDR’s], that the [EDR’s] were not complete.” Juror 11
agreed that he raised the issue of whether there was evidence that the blinker was on or
off.
       4
         The prosecutor argued in closing that the driver of the Dodge Charger “always
uses his signal. Now we don’t have any confirmation that he used the signal, ‘cause we
don’t have that on the [EDR], and nobody was able to testify whether they saw it or not.
Okay? But why would he lie?” Defense counsel responded that there was “no evidence”
the driver of the Dodge Charger turned on his blinker. In rebuttal, the prosecutor brought
up the issue again, arguing the driver was “credible. And he always uses his turn signal.”

                                              20
       Juror 10 unequivocally confirmed that no juror said they were considering
punishment in the case.
       The foreperson had a different take. He said Juror 11 and others “brought it up”
and it “may have been mentioned once or twice,” but whenever it came up, “the group
would very quickly remind everyone” that punishment was not part of the jury’s role.
The foreperson did not convey that these were anything more than passing references,
immediately batted down by the rest of the jurors.
       Juror 11 answered “unfortunately yes” to the trial court’s question about whether
any juror had said they were considering punishment. He then elaborated, without
prompting, that punishment was the court’s responsibility, not the jury’s, and expressed
his discomfort with the fact that the jury’s discussion included punishment. But he stated
twice, and unequivocally in response to the trial court’s repeated question, that he had not
considered or discussed the defendant’s possible punishment.
       The record reflects no evidence to support the trial court’s view that Juror 11 was
“absolutely inconsistent with the fellow jurors.” Juror 10 and the foreperson flatly
disagreed with one another whether punishment had even been discussed. Juror 11 and
the foreperson agreed that the issue had come up, but that it had been batted down. Juror
11 denied he had raised or considered the issue, and gave the fullest disquisition that
punishment was not in the jury’s purview. Even if Juror 11 had brought up the issue of
punishment, there is insufficient evidence that any consideration of it by him was any
more than de minimis, and not a basis to discharge him for misconduct. (See Armstrong,
supra, 1 Cal.5th at p. 452 [“de minimis references” to reading a book or looking at a cell
phone during deliberation insufficient to conclude juror was refusing to deliberate].)
       Failure to Follow Instructions/Burden of Proof
       The trial court concluded Juror 11 committed misconduct by failing to follow the
court’s instructions, specifically the burden of proof. The trial court focused on a phrase
that Juror 10 and the foreperson attributed to Juror 11, most particularly whether Juror 11
would “strictly follow the law.” Juror 11 did not recall using that phrase.


                                             21
       When we review the record as a whole, the decision whether to discharge Juror 11
for failing to follow the court’s instructions requires more nuance than deciding whether
Juror 11 did or did not use, or did or did not recall, a particular phrase. Rather, the
question is does the record show as a demonstrable reality that Juror 11 failed to follow
the court’s instructions? Or is this simply a case of a deadlocked jury where the juror in
the minority was grappling with the evidence but may have had difficulty explaining
himself?
       This was a divided jury in the midst of deliberating on whether the prosecution
had proven the two most significant charges, murder and vehicular manslaughter, beyond
a reasonable doubt. The trial court knew the jury was deadlocked 10-2 on the murder
count and 11-1 on the manslaughter count, and on at least one enhancement, and the
inquiry into potential juror misconduct was precipitated by the foreperson’s concern that
the jury could not reach a verdict. When the foreperson first expounded on his “Personal
Note” to the trial court written at 11:45 a.m. on April 3, he told the trial court that there
had actually been “a very solid good faith amount of effort by all members on the jury”
and that he “commend[ed] all the members of the jury, because it has been a very
invested and involved process by all of them.” (Emphasis added.) The trial court
correctly recognized when it discharged Juror 11 that the juror was not being excused for
failure to deliberate. How could he be? The jury had reached verdicts on two of the
counts, and one of the enhancements, and the foreperson emphasized Juror 11’s good
faith efforts.
       Looking at the entire record, it shows two jurors (the foreperson and Juror 10)
describing their frustrations after a lengthy trial and deliberation, and ascribing their
inability to reach a verdict to Juror 11’s failure to follow the court’s instructions. The
foreperson, who clearly did not share Juror 11’s view of the facts, complained that he
believed Juror 11 was “trying very hard to justify a position he wants to take” that simply
was not “supported by the facts.” But does any juror who disagrees with another juror
think the other juror’s position is supported by the facts? Juror 11, on the other hand,
offered his perhaps inartful explanations of why he believed he was following the trial

                                              22
court’s instructions and holding the prosecution to its burden of proof. The foreperson
reported that Juror 11 never said he would not follow the court’s instruction. The
foreperson’s concern was that Juror 11 was “having a very hard time explaining where
their reasonable doubt is coming from and pointing to facts that are giving them
reasonable doubt.” Juror 10 reported that Juror 11 had said “if he were to strictly follow
the law, he would convict . . . .” But in explaining the context of the remark, Juror 10
also stated “it was in reference to trying to explain [Juror 11’s] reasoning behind why he
was, where his reasonable doubt came from.”
       At bottom, it appears that Juror 11 “fail[ed] to agree with the majority of other
jurors [and] persist[ed] in expressing doubts about the sufficiency of the evidence in
support of the majority view” and had trouble “articulat[ing] the exact basis for
disagreement after a complicated trial,” but these circumstances do not amount to juror
misconduct. (Engelman, supra, 28 Cal.4th at p. 446.) As we have described, it is not a
ground to discharge a juror because he “relies on faulty logic or analysis” (Cleveland,
supra, 25 Cal.4th at p. 485), or because he “does not deliberate well or skillfully”
(Engelman, supra, 28 Cal.4th at p. 446). The foreperson and Juror 10 (whom the trial
court believed over Juror 11) did not claim that Juror 11 said he intended to disregard the
trial court’s instructions or he disagreed with the law as instructed by the trial court.
       The Attorney General claims that Juror 11’s statements “resemble” those used by
a defense attorney in People v. Williams, supra, 25 Cal.4th 441. We are not persuaded.
In Williams, the defendant was charged with multiple crimes, including unlawful sexual
intercourse with a minor as lesser included offenses to the charges of rape. Defense
counsel argued in closing about the misdemeanor “statutory rape” charges: “Law as you
know is not uniformly applied. . . . Mores, custom[s] change. Times change. And the
law must be applied fairly. So if the law is not being applied fairly, that’s why you need
fair jurors.” (Id. at p. 445.) Defense counsel then purported to quote from a U.S.
Supreme Court case (but actually quoting the dissent) that “ ‘ “a jury may, at times,
afford a higher justice by refusing to enforce harsh laws.” Please understand.’ ” (Id. at p.
446.) On the first day of deliberation, the foreperson sent a message to the trial court that

                                              23
a juror refused to adhere to the trial court’s instruction on statutory rape because he
believed the law is “wrong.” The juror in question then told the trial court that he was
not willing to follow the judge’s instruction on this charge because he did not believe
statutory rape should be a crime (although he would follow the other instructions for the
rest of the charges) and that he was not willing to follow his oath as a juror. Not
surprisingly, this juror was discharged. In affirming the judgment, the Supreme Court
reaffirmed the “basic rule” that a juror must determine facts and render a verdict in
accordance with the trial court’s instructions, and failure to do so constitutes failure to
perform one’s duty as a juror under Penal Code section 1089. (Id. at p. 463.) But
Williams is not this case. Juror 11 said he was following and would follow the trial
court’s instructions. He did not express a view that any of the charges against defendant
here should not be a crime, and there was not substantial evidence in this record to
suggest otherwise.
       The Attorney General also relies on People v. Harrison (2013) 213 Cal.App.4th
1373, 1382, where the Court of Appeal affirmed a decision to remove a holdout juror
where the facts demonstrated the juror was unable to follow the law. That case, too, is
distinguishable on its facts. There, on a “well supported” record, the Court of Appeal
agreed that the juror “manifestly was unable to focus on the relevant principles and to
apply the court’s instructions to the facts of the case before him” (id. at p. 1383), despite
accommodations and assistance by the trial court, including permitting the juror nine
hours of independent study alone in the jury room to review the jury instructions and
notes. (Id. at p. 1379.) The juror in question was “overwhelmed by the task of a juror,
questioning the basic principles he was instructed to accept, such as the presumption of
innocence, and the meaning of many commonly used words in the court’s instructions.”
(Id. at p. 1383.) Days into the deliberations, the juror’s own five-page set of questions to
the trial court with extraneous and irrelevant inquiries about the nature of the legal
process and decision making showed his own “deep uncertainties and inability to follow
the court’s instructions.” (Id. at p. 1383.)


                                               24
        In sum, we conclude that the trial court’s decision to discharge Juror 11 for the
reasons stated was not manifestly supported by the evidence on which it relied, and that
the trial court abused its discretion in discharging him. (Armstrong, supra, 1 Cal.5th at p.
451.)
                                       DISPOSITION
        The trial court abused its discretion in discharging Juror 11. This error is
prejudicial and requires us to reverse the judgment. (Cleveland, supra, 25 Cal.4th at p.
486.) The double jeopardy clauses of the California and federal Constitutions do not bar
retrial of the case. (Armstrong, supra, 1 Cal.5th at p. 460.)




                                              25
                                         _________________________
                                         Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A152729, People v. Salinas-Jacobo




                                    26
Trial Court: Superior Court of Sonoma County


Trial Judge: Hon. Patrick Broderick


Law Offices of John F. Schuck, John F. Schuck, under appointment by the Court of
Appeal, for Defendant and Appellant


Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Elizabeth W.
Hereford, Deputy Attorneys General, for Plaintiff and Respondent




A152729, People v. Salinas-Jacobo




                                          27
