Opinion
E070870
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. HAZIM AHMAD, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1300807) OPINION APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Judgment reversed and retrial ordered. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
On April 20, 2018, defendant and appellant, Hazim Ahmad, was convicted by a jury of two counts of aggravated sexual assault, rape, of a child under the age of 14 (Penal Code, § 269, subd. (a)(1)) and one count of aggravated sexual assault, oral copulation, of a child under the age of 14 (§ 269, subd. (a)(4)). Defendant was convicted only after the trial court removed a juror (Juror No. 7) following seven days of deliberation and replaced her with an alternate. The originally empaneled jury had reached a verdict only as to one of the four counts with which defendant was charged and deadlocked on the remaining three counts. Defendant appeals arguing the trial court abused its discretion in removing Juror No. 7. The People strongly agree and concede the record does not support the trial court's action in this case. Our own review of the record leads us to agree and we reverse the judgment.
Undesignated statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges
In September 2003, defendant married J.M. and adopted J.M.'s daughter, Jane Doe. Jane Doe alleged that on June 20, 2009, when she was only 12 years old, defendant entered her room during the night and raped her. According to Jane Doe, defendant continued to rape her on a near daily basis following the June 20, 2009 incident and also forced her to orally copulate him. Jane Doe did not disclose the abuse for years because defendant threatened to kill her if she did.
Defendant was charged with the following crimes involving a child under 14 years of age: (1) aggravated sexual assault, rape, for the June 20, 2009 incident (count 1, §§ 261, subd. (a)(2), 269, subd. (a)(1)); (2) aggravated sexual assault, rape, for the alleged rapes occurring after the initial incident (count 2, §§ 261, subd. (a)(2), 269, subd. (a)(1)); (3) aggravated sexual assault, sodomy, for alleged incidents occurring after the initial incident (count 3, §§ 286, subds. (c)(2), (c)(3) & (d), 269, subd. (a)(3)); and (4) aggravated sexual assault, oral copulation, for the alleged incidents occurring after the initial incident (count 4, §§ 288a, subds. (c)(2), (c)(3) & (d), 269, subd. (a)(4)). B. Jury Deliberation
The jury began deliberations in defendant's case on April 4, 2018. Over the course of seven days of deliberations, the jury sent the trial court numerous notes requesting testimony or evidence; clarification of instructions and applicable law; and assistance with equipment and materials to use in deliberations. None of the notes suggested juror misconduct or a failure of any juror to participate in deliberations.
On April 13, 2018, the jury sent the trial court a note indicating it had reached a verdict on count 1, but deadlocked on the remaining three counts. The note did not suggest or accuse any juror of misconduct. In response, the trial court called the jury back, read additional standard instructions regarding further deliberations, and ordered the jury back into deliberations.
On April 16, 2018, the jury sent the trial court another note indicating it had reached a verdict on one count, but deadlocked on the remaining three counts. The court called the jury back and began asking the foreperson questions to inquire whether there was anything the court or the attorneys could do to assist the jury in reaching a verdict. In response to the trial court's questioning, the foreperson expressed his view that nothing further could be done to assist the jury in reaching a verdict. C. Trial Court's Initial Investigation
The trial court proceeded on its own to question each juror individually in the presence of the other jurors. The first three jurors informed the court they did not believe anything further would assist the jury to resolve its deadlock. When the trial court addressed Juror No. 4, Juror No. 4 responded, "maybe further guidance on using the evidence" and "using facts given, versus opinions." Juror No. 4 confirmed that the jurors had discussed the evidence, but disagreed "as to what actually happened." In response, the trial court asked Juror No. 4, "[a]re you expressing opinion that some jurors did not consider the evidence without bringing in outside opinions, or considering something that they weren't supposed to consider?" Juror No. 4 answered, "I feel that opinions were used instead of facts," and "I feel there was a predisposition." Upon further questioning by the trial court, Juror No. 4 expressed the belief that predisposition by certain jurors prevented the jury from doing its job.
The trial court then asked Juror No. 5 whether the juror agreed with Juror No.4's suggestion that some jurors had predisposed opinions. Juror No. 5 responded: "No, not necess[arily.]" In response, the trial court pressed Juror No. 5 further by asking whether "No, not necess[arily]" meant "maybe." Juror No. 5 simply responded, "Possibly." Juror No. 5 then reaffirmed the belief expressed by the first three jurors that nothing further could be done to resolve the jury's deadlock.
The trial court moved on to question Juror No. 6. When Juror No. 6 also affirmed the belief that nothing further could be done to resolve the deadlock, the trial court asked Juror No. 6: "Do you agree with Juror No. 4 and somewhat Juror No. 5, that possibly some jurors had a predisposition." In response to this prompting, Juror No. 6 expressed agreement.
Likewise, when Juror No. 7 expressed the opinion nothing further could be done to resolve the deadlock, the trial court asked whether Juror No. 7 "agree[d] with Jurors 4, 5 and now 6, that some predisposition or opinions improperly influenced" some jurors. Juror No. 7 responded with, "Possibly." The trial court continued this same pattern of questioning with Juror Nos. 8, 9, 10, 11, and 12. It then returned to the first three jurors to ask them the same questions. Although the trial court occasionally phrased its questions to some jurors using the term, "possibly," and some jurors responded with an equivocal answer of, "possibly," upon completing its questioning, the trial court declared that the jurors all unanimously agreed that some jurors had arrived in to deliberations with predisposed beliefs. It then ordered the jurors back into deliberations and instructed them that their oath required them to "judge the credibility of the witnesses without any bias, predisposition, personal experience. Common sense, yes. Personal experiences, not so much." D. Trial Court's Individual Juror Interviews
As the People note, this additional instruction appears to conflict with the trial court's previous instruction to the jury using the standard CALCRIM No. 105, which explicitly instructs jurors to use their personal experience in judging the credibility of witnesses.
After approximately 10 minutes into the resumed deliberations, the trial court, on its own initiative, interrupted the jury's deliberations and began to call individual jurors for examination to investigate potential juror misconduct. The trial court first called Juror No. 4 and requested the juror identify the source of the jury's deadlock. In response, Juror No. 4 identified Juror No. 7 as the problematic juror and expressed the opinion that Juror No. 7 had opinions "from the start"; "did not want to see the facts"; and allowed her opinions to prevent the jury from "going forward" with verdicts. Juror No. 4 expressed disagreement with Juror No. 7's logic and method of analyzing the facts; accused Juror No. 7 of "shut[ting] down at various times" and expressed the opinion that deliberations would run more smoothly without Juror No. 7.
The trial court proceeded to individually examine Juror No. 5, who rejected the suggestion that any juror had arrived into deliberations with predisposed opinions. Juror No. 5 reported that several jurors had referred to their life experiences during deliberations; that Juror No. 7 referenced suffering childhood physical abuse in her past; that she did not believe Juror No. 7's reference to past abuse impacted Juror No. 7's deliberations; and that Juror No. 7's reference to past abuse was for the purpose of explaining Juror No. 7's view regarding the credibility of a witness.
When individually examined by the trial court, Juror No. 6 confirmed that Juror No. 7 had introduced life experiences during deliberations, but also confirmed that other jurors had done the same. Juror No. 6 also expressed the opinion that Juror No. 7's past life experiences did not appear to impact Juror No. 7's ability to deliberate, but agreed when the trial court suggested that deliberations would run more smoothly without Juror No. 7.
Juror No. 8 also confirmed that Juror No. 7 introduced life experiences while deliberating. Additionally, Juror No. 8 complained that Juror No. 7 disrupted deliberations by chewing gum, permitting her phone to vibrate, showing up late for deliberations, sitting on the jury room floor, and complaining of the air flow in the jury deliberation room. Juror No. 8 further complained that Juror No. 7 would "ramble"; accuse other jurors of "ganging up" on her when she didn't agree; and use flawed reasoning. When asked by the trial court, Juror No. 8 agreed that deliberations would run more smoothly without Juror No. 7.
When the trial court individually examined Juror No. 7, Juror No. 7 confirmed she had referenced her past experience with physical abuse, but explained that she had done so for the purpose of evaluating the credibility of a witness's testimony. She expressed the belief that such reference was proper under the instructions given.
Following the individual examinations of these four jurors, the trial court informed the parties that it would have to remove Juror No. 7 and replace her with an alternate. The trial court concluded that Juror No. 7 had not properly deliberated and failed to disclose past physical abuse in her initial jury questionnaire. However, the trial court expressed this was its "tentative" ruling, and it would complete its examination of the remaining jurors before making a final decision.
Upon examination, Juror No. 9 also identified Juror No. 7 as the problematic juror. Juror No. 9 reported Juror No. 7 discussed suffering physical abuse as a teenager and counseling she had received in order to "correlate evidence with personal experience." Upon being prompted by the trial court, Juror No. 9 agreed that the jury could progress in deliberations without Juror No. 7.
At the trial court's request, Juror No. 10 also identified Juror No. 7 as the problematic juror. Juror No. 10 confirmed Juror No. 7 had raised the issue of past physical abuse and counseling, but also offered that Juror No. 7 had referenced her experience with another individual accused of a crime. Juror No. 10 expressed the opinion that Juror No. 7 had been "combative," "distracting," and "rude." Juror No. 10 agreed deliberation could continue if Juror No. 7 were removed.
When questioning Juror No. 11, the trial court specifically asked Juror No. 11 to identify the juror who had a "predisposition . . . to vote one way or the other." Juror No. 11 identified Juror No. 7 by her physical attributes. When asked to explain why he believed Juror No. 7 was predisposed to vote a certain way, Juror No. 11 simply stated that Juror No. 7 was "not engaging." Juror No. 11 expressed the opinion that Juror No. 7 appeared influenced by her personal experience, but also expressed the opinion that such experience did not appear to improperly influence Juror No. 7 with respect to the one count on which the jury did reach a unanimous verdict.
Juror No. 12 also confirmed that Juror No. 7 was the source of the jury's deadlock; complained of Juror No. 7's references to personal experience; complained that Juror No. 7 occasionally sat on the floor; recalled one instance in which Juror No. 7 commented about "not participating"; and recalled occasions in which Juror No. 7 refused to explain her reasoning to the other jurors. When asked when Juror No. 7 began exhibiting the behaviors complained of, Juror No. 12 did not provide a definitive answer. Juror No. 12 also confirmed that she had referenced her own personal experience with past abuse during deliberations, but that the abuse did not involve sexual abuse.
The trial court prefaced its questioning of Juror No. 1 by stating that all jurors "agreed that there was a juror or jurors who were basing their vote on outside stuff." In response, Juror No. 1 agreed with the trial court's representation. After identifying Juror No. 7 as the lone dissenting juror, Juror No. 1 expressed that Juror No. 7 had "her own opinion"; that Juror No. 7 could not be swayed; and that the other jurors were unable to "guide her to try and see our point of view." When asked if Juror No. 7 refused to talk, Juror No. 1 did disagree with that characterization, but instead stated that Juror No. 7 would often get defensive in discussions. Juror No. 1 confirmed Juror No. 7 referenced personal experiences, but could not clarify when those references were made in the course of deliberations.
Juror No. 2 also identified Juror No. 7 as the source of the jury's deadlock. Juror No. 2 believed that Juror No. 7's past experience with physical abuse influenced Juror No. 7's deliberations. Juror No. 2 believed that Juror No. 7 became upset, argumentative, or defensive when other jurors attempted to stop discussions of personal experiences. Juror No. 2 expressed that other jurors did not appreciate Juror No. 7's disorganized reasoning and poor attitude. Juror No. 2 confirmed that Juror No. 7 would sometimes sit on the floor after complaining of the deliberation room's air conditioning, but also noted that other times Juror No. 7 would sit at the table with the other jurors. Finally, Juror No. 2 recalled one instance on the Friday of deliberations where Juror No. 7 appeared distracted by her phone and expressed a desire to leave early.
Finally, Juror No. 3 also identified Juror No. 7 as the juror who brought outside experiences into the deliberative process. Juror No. 3 could not recall precisely when during deliberations Juror No. 7 brought up her personal experiences. While Juror No. 3 did not believe Juror No. 7 engaged in much discussion, Juror No. 3 did confirm that Juror No. 7 reviewed documents used by all the jurors to analyze the evidence. Juror No. 3 further reported that Juror No. 7 attempted to explain her positions, but that the other jurors found her reasoning illogical and did not understand her thought process. Juror No. 3 did not believe Juror No. 7's cell phone had been a distraction during deliberations.
Following completion of its examination of all the jurors, the trial court ruled that Juror No. 7 had committed juror misconduct and dismissed her. The trial court based this decision on findings that: (1) the other jurors unanimously reported Juror No. 7 had failed or refused to properly deliberate; (2) Juror No. 7 had been dishonest in her responses to the juror questionnaire; (3) Juror No. 7 had improperly used her life experiences in deliberations; and (4) Juror No. 7 exhibited "disdain" for the judicial proceedings. The trial court dismissed Juror No. 7 and replaced her with an alternate. With the alternate juror, the jury subsequently returned a guilty verdict on three counts and a not guilty verdict on one count. C. Verdict & Sentencing
As acknowledged by the People, the trial court's minute order represents that the parties stipulated to Juror No. 7's removal, despite the fact that defendant brought a motion requesting the court accept the verdict on the one count on which the jury reached a unanimous verdict and declare a mistrial as to the remaining deadlocked counts.
On April 20, 2018, the jury found defendant guilty on count 1, count 2 and count 4, but not guilty on count 3. Defendant was sentenced to three consecutive terms of 15 years to life, as well as a restitution fine and court assessments.
III. DISCUSSION
The only error defendant asserts on appeal is that the trial court abused its discretion in removing Juror No. 7 during deliberations and replacing her with an alternate. The People concede that the record does not support the trial court's actions in this regard, resulting in a denial of defendant's constitutional right to a jury trial. Based upon our independent review of the record, we agree that the judgment must be reversed and the matter remanded for a new trial. A. General Legal Principles and Standard of Review
"The trial court may discharge a juror for good cause at any time, including during deliberations, if the court finds that the juror is unable to perform his or her duty. [Citation.] 'When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required. [Citations.]' [Citation.] . . . 'Grounds for investigation or discharge of a juror may be established by his statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists. [Citation.]' " (People v. Lomax (2010) 49 Cal.4th 530, 588.)
"Although decisions to investigate juror misconduct and to discharge a juror are matters within the trial court's discretion . . . 'a somewhat stronger showing' than is typical for abuse of discretion review must be made to support such decisions on appeal. [Citation.] . . . [T]he basis for a juror's disqualification must appear on the record as a 'demonstrable reality.' This standard involves 'a more comprehensive and less deferential review' than simply determining whether any substantial evidence in the record supports the trial court's decision. [Citation.] It must appear 'that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion . . .' However, in applying the demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is whether 'the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' " (Lomax, supra, 49 Cal.4th at pp. 589-590.) B. The Record Does Not Support the Trial Court's Findings to a Demonstrable Reality
Here, the trial court offered four grounds for Juror No. 7's disqualification. However, as the People concede, the basis for each of these grounds for disqualification does not appear in the record as a demonstrable reality.
First, the trial court concluded that Juror No. 7 failed to deliberate. However, the record indicates that the jury deliberated for more than seven days without any indication that any juror was refusing to participate in deliberations. When individually interviewed, several jurors confirmed that during this time Juror No. 7 participated in discussions and reviewed evidence. More importantly, multiple jurors complained that Juror No. 7 had faulty logic or expressed frustration with Juror No. 7's inability to clearly communicate her thoughts. This testimony strongly suggests that Juror No. 7 was actively participating in deliberations by attempting to explain her thoughts and views—even if she was unable to do so in an articulate manner.
While some jurors recalled incidents in which Juror No. 7 "shut down" or was unwilling to engage in further discussion, none of the jurors clarified whether this behavior was consistent from the outset or whether it occurred only after the jury had reached an impasse at which point further discussion would not yield a different outcome. As the People correctly note, a juror who has participated in deliberations may not be discharged for refusing to deliberate "simply because the juror expresses the belief that further discussion will not alter his or her views." (People v. Cleveland (2001) 25 Cal.4th 466, 485; see People v. Armstrong (2016) 1 Cal.5th 432, 453 [fact that a juror is not willing to engage in further discussion after jury reaches an impasse does not show as a demonstrable reality that juror was failing to deliberate].)
Further, even if these behaviors were exhibited throughout the entire time of deliberations, it would not have been sufficient grounds to remove Juror No. 7. In light of the fact that the jury reached a unanimous verdict on one count, and the fact that jurors confirmed there were times in which Juror No. 7 did discuss her opinions and examine the evidence during deliberations, reports that Juror No. 7 occasionally "shut down" or refused to discuss an issue further would not be sufficient to find a failure to deliberate. "Decisional law makes clear that deliberating 'not well' is an inadequate basis for removal of a juror for failure to deliberate." (Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 555.) --------
Second, the trial court concluded that Juror No. 7 was dishonest on her juror questionnaire by failing to disclose she was the victim of physical abuse; failing to disclose she knew of someone accused of a crime; and failing to disclose alleged religious bias. However, the record does not indicate that Juror No. 7 was ever asked to disclose whether she had any past experience with physical abuse or whether she knew of anyone convicted of a crime. Nor does the record indicate that any juror reported an instance in which Juror No. 7 referenced her religious views in discussing her substantive thoughts of the case during deliberations; does not indicate what religious view Juror No. 7 may have had relevant to the issues in defendant's case; and does not disclose any questions by the trial court to attempt to ascertain whether Juror No. 7 held religious views that would be relevant to any issue in defendant's case. In short, the record contains no evidence to support the conclusion that Juror No. 7 was dishonest, let alone evidence sufficient to show dishonesty to a demonstrable reality.
Third, the trial court concluded that Juror No. 7 improperly relied upon her life experiences in deliberation. However, when jurors recounted the specific instances in which Juror No. 7 referenced her life experience, several reported that she did so in order to evaluate the credibility of witnesses. The record does not indicate that any jurors reported other specific instances in which Juror No. 7 brought up her life experiences. As the People correctly point out, reliance on life experience in and of itself is not improper. (People v. Wilson (2008) 44 Cal.4th 758, 825 [deliberating juror may rely on life experiences to interpret the evidence]; People v. Allen and Johnson (2011) 53 Cal.4th 60, 76-77 [same].) While there may be improper ways to raise personal, life experience during deliberation, the record does not evidence any such improper use here. Thus, the fact that Juror No. 7 referenced her life experience during deliberations in and of itself does not support a finding of misconduct to a demonstrable reality.
Finally, the trial court concluded Juror No. 7 exhibited disdain for the judicial process. In reaching this conclusion, the trial court cited to reports that Juror No. 7's phone vibrated during deliberations, that she chewed gum, was occasionally tardy, was rude to other jurors, and reports by other jurors that her attitude came across as if she were an expert on various subjects discussed during deliberations. However, the record contains no indication how frequently any of these behaviors were exhibited during more than a week of deliberations. Nor is there any indication of how or in what manner these behaviors disrupted the course of the trial or jury deliberations. Indeed, the jury was clearly able to reach a verdict as to one count, despite this allegedly disruptive behavior. Given the trial court's minimal inquiry on these issues, the record here does not support a finding that Juror No. 7 exhibited a disdain for the judicial process to a demonstrable reality sufficient to warrant removal. We conclude the record here is not sufficient to support the trial court's grounds for removal of Juror No. 7. C. Defendant Was Prejudiced by the Improper Removal of Juror No. 7
A criminal defendant has a fundamental right under the California Constitution to a trial by a 12-person jury and a unanimous verdict by all 12 jurors. (People v. Traugott (2010) 184 Cal.App.4th 492, 500.) The People concede and we agree that the erroneous removal of a hold-out juror violated defendant's constitutional right to a jury trial and requires reversal.
IV. DISPOSITION
The judgment is reversed and a retrial ordered.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.