Opinion
C088883
05-11-2022
The PEOPLE, Plaintiff and Respondent, v. Kejhonne M. HENDERSON, Defendant and Appellant.
Byron C. Lichstein, Auburn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Timothy L. O'Hair, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts III – VIII and the dissenting opinion.
Byron C. Lichstein, Auburn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Timothy L. O'Hair, Deputy Attorney General, for Plaintiff and Respondent.
MURRAY, J. Defendant Kejhonne M. Henderson shot and killed J.P. at a house party in the North Highlands neighborhood of Sacramento. Upset that music of a local rapper disparaging his neighborhood's gang was being played, defendant exchanged heated words with the party's host. When J.P. intervened, he and defendant agreed to step outside. On their way to the door, defendant pulled a handgun out of his waistband and, when they got outside, shot J.P. multiple times in the head and chest. A.J., one of the party goers tackled defendant and knocked the gun out of his hand. Defendant regained possession and shot A.J. multiple times before fleeing. J.P. died before emergency services arrived at the scene, but A.J. survived.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury found defendant guilty of one count of second degree murder ( Pen. Code, § 187 ) and one count of attempted murder (§§ 664/187) and found true enhancement allegations that defendant personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) as to each count. The trial court sentenced defendant to serve an aggregate determinate term of seven years plus an aggregate indeterminate prison term of 65 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional right to a jury drawn from a representative cross-section of the community by excusing two African-American prospective jurors for cause based on their stated belief that the criminal justice system treats African-Americans unfairly and because they were sympathetic towards defendant; (2) the trial court abused its discretion in dismissing a sitting juror during trial for dishonesty; (3) the prosecutor violated defendant's federal constitutional rights by intentionally obtaining privileged and confidential information from the Director of the Conflict Criminal Defenders about defense counsel's attempts to obtain expert witness funding; (4) the trial court prejudicially abused its discretion and further violated defendant's constitutional rights by allowing the prosecutor to present assertedly misleading testimony and argument regarding the defense's ability to perform an independent forensic analysis; (5) the trial court prejudicially erred by improperly instructing the jury regarding circumstantial evidence; (6) the cumulative prejudicial impact of the foregoing asserted errors requires reversal; (7) the trial court abused its discretion by not considering reducing the 25 years to life firearm enhancements to lesser included firearm enhancements; (8) the trial court erred by imposing a restitution fine without an ability to pay hearing in violation of People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ); and (9) trial counsel provided constitutionally ineffective assistance of counsel by not submitting a Franklin package for future youthful offender parole consideration.
People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 (Franklin ).
In the published portion of this opinion, we conclude that a trial court may not excuse for cause African-American prospective jurors solely because of their belief that the criminal justice system treats African-Americans unfairly, but reject defendant's assertion that the two African-American prospective jurors here were excused for that reason. They were excused because the trial court concluded that, based on the voir dire evidence, they could not be impartial because of their bias and sympathy for defendant. On this record, we cannot conclude the court's ruling was an abuse of discretion; nor was defendant's constitutional right to a jury drawn from a representative cross-section of the community violated.
We further conclude the trial court erred in excusing a seated juror under section 1089, because the record does not demonstrate to a demonstrable reality that the juror could not perform his duties. However, applying the harmless error standard in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 ( Watson ), we conclude the error was harmless.
In the unpublished portion of this opinion, we reject defendant's other claims of error, except as to his challenge to the firearm enhancement. We affirm the conviction but remand to allow the trial court to consider exercising its discretion under section 12022.53, subdivision (h) and section 1385 to strike the section 12022.53, subdivision (d) enhancement in the interest of justice and impose instead a lesser enhancement under subdivisions (b) or (c) of section 12022.53. FACTUAL AND PROCEDURAL BACKGROUND
We previously filed an opinion addressing and rejecting defendant's contention as to the firearm enhancement. We held in the unpublished portion of our opinion that the trial court did not abuse its discretion by not considering whether to reduce the firearm enhancement to a lesser included firearm enhancement. The California Supreme Court granted review on this issue and deferred the appeal pending its decision in People v. Tirado S257658. (People v. Henderson (2021) 68 Cal.App.5th 709, 283 Cal.Rptr.3d 687, review granted November 23, 2021, S271346.) Our high court ultimately transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of its decision in People v. Tirado (2022) 12 Cal.5th 688, 289 Cal.Rptr.3d 59, 502 P.3d 941, which clarified that trial courts do have discretion to reduce firearm enhancements to a lesser included firearm enhancement under Penal Code section 12022.53, subdivision (b) or (c).
The Shooting
On May 5, 2017, defendant's girlfriend S.S. drove him to the house party. The host of the party was one of S.S.’s former friends, M.L. When S.S. pulled up, she saw "a crowd of people like outside" the party location, including M.L.’s mother. S.S. walked up with defendant and gave M.L.’s mother a hug before continuing into the house.
At trial, defendant's defense was misidentification, but he does not challenge the sufficiency of the evidence as to his identity as the shooter on appeal.
Regarding how defendant got to the party, it is undisputed he was with S.S. earlier in the evening. He was with her at her house and then went out to dinner with her, her mother and younger brother, V.S. They arrived at the restaurant about 9:00 p.m. and returned to S.S.’s house about 11:30 p.m. Although S.S. denied bringing defendant to the party, as we describe post , multiple witnesses told the police they saw them together at the party. They also left the party at the same time, after defendant shot the two victims. And according to a statement S.S.’s brother gave to the police, they arrived back at S.S.’s house together later that night. We also note S.S. testified that defendant did not drive. A reasonable inference from all of the evidence is that S.S. drove defendant to the party.
Inside the house, M.L. was playing music. When S.S. walked in with defendant, a song by Mozzy was playing. As the prosecution's gang expert testified, Mozzy is a rapper and validated member of the Fourth Avenue Bloods from Oak Park. His lyrics disparage rival Del Paso Heights Bloods gang members, and people from "the Heights" do not like his music.
S.S. spoke to M.L. in the living room while defendant exchanged words with another young man who was also in the living room. As M.L. explained in her police interview, while she could not hear what was being said between defendant and the other young man, there "was clearly a problem."
Much of the evidence in the trial consisted of prior statements to the police of witnesses who had denied making those statements or had failures of recollection when they testified.
Defendant then turned his attention to M.L., saying "turn that sucka shit off" and "strictly twos Del Paso Heights." M.L. understood this to mean he wanted her to change the Mozzy song that was playing. As she did so, defendant "just kept talking, talking about stupid twos, strictly the Heights, da-da-da-da-da, one Del Paso, this and that sucka shit."
As discussed, ante , these statements were things Del Paso Heights Bloods say.
While defendant was confronting M.L. over the music, her close friend, J.P., entered the living room from the kitchen and asked her if she was okay. J.P. then confronted defendant, who responded: " ‘What are you tryin’ to do? Let's step outside.’ " J.P. agreed. As they turned to step outside, defendant pulled a handgun out of his waistband and held it by his side. One of J.P.’s friends, J.M., saw defendant pull out the gun and walked out of the house ahead of defendant and J.P. Defendant opened fire on J.P. as soon as they got outside, shooting J.P. multiple times including the back of the head. As J.M. described in his statement to police: "He didn't even give him a chance." J.M. ran away after the first couple rounds were fired, but not before seeing defendant shoot his friend in the head and lower back. A different witness to the shooting explained in her statement to police that three rounds were fired while J.P. was standing. Five or six additional rounds were fired after J.P. fell to the ground.
A forensic pathologist testified J.P. was struck by at least seven rounds. One round entered the back of J.P.’s head on the left side. Two rounds entered in the back and one entered the right buttock. Rounds also entered J.P.’s right nostril, his chin area, and his chest. J.P. also sustained gunshot wounds to both arms, but it was not clear whether these wounds were caused by separate additional rounds, or by two of the rounds that caused the other wounds.
When defendant stopped firing, another of J.P.’s friends, A.J, chased defendant and tackled him to the ground, knocking the gun out of his hand. Defendant managed to pick up the gun and then shot A.J. three times before running away. M.L.’s mother, who was still outside when the shooting occurred, was also hit in the calf by one of the rounds fired by defendant. She and A.J. survived their injuries. J.P. died before emergency services arrived at the scene.
No charges were filed naming M.L.’s mother as a victim.
Gang Evidence
As noted, while complaining about the music prior to the shooting, defendant refenced "stupid twos" and "strictly twos Del Paso Heights" while demanding that the party hosts "turn that sucka shit off." A gang expert testified that members of the Del Paso Heights Bloods often use a gang sign meant to display the letter H, which "stands for The Heights." This gang sign involves extending the pointer and pinky finger up. Referring to this gang sign, Del Paso Heights Bloods often verbally claim membership in the gang by saying some variation of: "Twos Up, stupid twos, It's all about the twos."
The term "Su[c]ka" is a derogatory term for rival gang members. The expert further opined that if a Mozzy song was playing at a party in Sacramento and a person said, " ‘Shut that suc[k]a off,’ " that would indicate that person was affiliated with a rival gang.
Identification Evidence
Although witnesses who previously identified defendant did not do so at trial, proof of defendant's identity as the shooter was nevertheless strong. Both J.M. and M.L. identified him out of a photo lineup. J.M. also described defendant as being a "dark skinned" African-American male, 5 feet 9 inches to 5 feet 10 inches in height, and about 170 to 180 pounds. He further explained that defendant was wearing a blue hooded jacket when he walked into the party with a girl that generally matched S.S.’s description. The host described defendant as being, "probably like six-three, six-four," and bigger in build, "maybe like 230," but confirmed he was wearing a "navy blue" hooded sweatshirt with a "yellow Polo symbol" and also identified S.S. as the person he was with when they arrived at the party. Another witness, who did not identify defendant, described the shooter as being a "dark skinned" African-American male, 5 feet 11 inches to 6 feet in height, and wearing a "dark blue" hooded sweatshirt.
From M.L.’s position inside the house, she was able to see S.S.’s response to the shooting. As M.L. explained, when the shooting started outside, "everyone was trying to get in" except for S.S. She pushed through the crowd of people coming inside and left the house. M.L. assumed she was leaving with defendant. This assumption turned out to be correct. As S.S.’s little brother, V.S., explained to a detective, he was playing video games at his home with a friend until around 2:00 a.m. At some point that night, S.S. and defendant "come in the door." V.S. asked "where they were at" and "they just said that they had went to this person's party." Around this time, M.L. sent the following message to S.S. on Instagram: "I'm not stupid. You walked in with that nigga and got off with that nigga. My fucking bro gone. He was trippin cause the music I was playing."
Defendant was arrested at S.S.’s house later in the morning. A "blue zip-up" hooded sweatshirt was found during a search of the house. This sweatshirt had a yellow Polo symbol as witnesses described. DNA matching defendant's profile was extracted from the sweatshirt. Gunpowder residue was also found on a sample collected from the right front cuff of the sweatshirt.
DISCUSSION
I. African-American Prospective Jurors Excused for Cause
Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional right to a jury selected from a fair cross-section of the community by excusing two African-American prospective jurors for cause, based on their belief that the criminal justice system treats African-Americans unfairly and because they were sympathetic towards defendant. As we shall discuss, the trial court excused the two prospective jurors because it concluded they could not be impartial. Their voir dire testimony supported a finding that they could not decide the case solely on the evidence without regard to sympathy to defendant. On this record, we cannot conclude the court abused its discretion. Nor was defendant's constitutional right to a jury drawn from a fair cross-section of the community violated.
A. Additional Background
During voir dire, defense counsel asked the panel of prospective jurors whether anyone had any negative experiences with law enforcement. Prospective Juror No. 1 responded: "I have a concern with law enforcement in general." She continued: "Especially in this day and age, and particularly because I have two young adult sons and two young adult stepsons. So I'm concerned daily for any interaction that they might come in contact with law enforcement officers." Defense counsel followed up: "Okay. And I don't want to politicize my conversation with you or the rest of the group. But acknowledging that, the real issue is — is will that not allow you to be fair to — let's say if an officer gets on the stand?" Prospective Juror No. 1 answered: "I feel like I could be fair." Defense counsel then asked if there was anything else she thought the court and parties should know. Prospective Juror No. 1 answered: "I would say that just recently I was at — not participating but just observing a demonstration. And there was — and I'm sure it was probably their job, but there was just a standoffish type of environment between the people who were demonstrating and the officers. And they just — they didn't seem approachable. And like I say, I wasn't participating. I was only observing. But even from an — from my perspective, they just seemed not ... approachable." Defense counsel asked whether she would be less likely to believe a police officer's testimony if the officer "appear[ed] standoffish on the stand." She responded: "I may think that I might not like him just on a first appearance type of thing, but that doesn't mean that I would think that he wouldn't be credible or believable."
In response to these answers, defense counsel stated: "It sounds like you're guarded about law enforcement as it relates to your young people in your life, the four young African-American males." Prospective Juror No. 1 responded: "Concerned more than guarded, yes." Following up, defense counsel asked: "So my client is African-American and he appears to be young. Is that going to — everything that we've just kind of talked about, do you think you would be swayed to be more sympathetic to [defendant]?" She answered: "Probably, because he's probably about my children's age. So it's possible ." Defense counsel responded, "And I appreciate that. That's why we're here. We're trying to — this may not be the best trial for you, right, because of everything. And that's fine . So that's the question for you. Counsel then asked: "If everything was equal, at the end of this trial, let's just say that, and the evidence and the presentation and all that sort of thing, is the fact that he reminds you of your boys going to sway you to vote our direction and that being the only reason that you would vote for us ?" Prospective Juror No. 1 answered: "All things being equal, I can't say that it would sway me, but it would be something that I would consider ." (Italics added.)
Defense counsel thanked Juror No. 1 for her answers and then asked the panel if anyone else had similar concerns. Prospective Juror No. 5 responded: "I would have the same feelings just — and concern." Defense counsel responded that having those concerns was fine, but asked: "Is that going to keep you from being fair to [the prosecutor] in her presentation, to the witnesses that she puts on, will that sway your opinion of that evidence at all towards my presentation, my evidence, with [defendant] just sitting there?" She answered: "I don't think that it will."
During the prosecution's voir dire, the prosecutor picked up this line of questioning, telling the panel: "Something that [Prospective Juror No. 1] said. She brought up something that is very political in the current society right now. A young [B]lack male. We are not blind. We know that [defendant] — what his race is. You can also kind of guess about how old he may be. And she was honest enough to say she has some concern. I believe [Prospective Juror No. 5] said she also had some concerns." The prosecutor then asked if anyone else felt the same.
Prospective Juror No. 9 answered: "I do. Yes." She explained: "Just because the defendant also is about — around — probably around the same age as my half-brother . And also, too, I have concerns as well too about the stuff that's going on right now, being able to be swayed one way or the other ." The prosecutor asked: "Do you feel that that would enter into your deliberations if you were to sit as a juror?" She responded: "I do believe so. Yes ." The prosecutor followed up: "If the defendant was of a different race or ethnic background, would you have those same concerns?" Prospective Juror No. 9 answered: "Probably not." (Italics added.)
The prosecutor then asked the same question of Prospective Juror No. 5. She said she would have similar concerns about "police brutality in the community" if defendant was Hispanic, or any race or ethnicity other than White, but not if defendant was White.
Turning to Prospective Juror No. 1, the prosecutor asked: "You said that if you were chosen as a juror and you were sitting in the jury deliberation room, that that might enter into your deliberations. You might be swayed. [¶] What if the defendant were of a different race or ethnic background? Or specifically, let's say if the defendant were [W]hite." Prospective Juror No. 1 answered: "For me personally, it would be different because I wouldn't be able — I wouldn't as easily be able to identify with that, someone who was [W]hite, reminding me of my children , as I am with — in this current situation. [¶] So it would still have an impact because I would see it as a young life. But I wouldn't see — I wouldn't as easily — I wouldn't be able to as easily visualize my child in that situation ." (Italics added.) The prosecutor followed up with, "So because you have children who may be of similar age, that's what your concern is ?" Prospective Juror No. 1 replied: That's part of it, yes ." (Italics added.)
The prosecutor challenged all three prospective jurors for cause based on their statements regarding what the prosecutor referred to as "the current state of affairs as relates to law enforcement and the perception about interactions with African-American males."
Defense counsel responded, "all three of those persons are African-American or of African descent," and argued: "I think that people expressing their political concerns in an honest manner, precluding them from being on a jury or — or participating in jury service appears to be very dangerous. In other words, if you can't agree with law enforcement or like law enforcement to some extent, because there's been some perceived bad interactions with your racial group or your group, then you're precluded from participating in the justice system. That's how I immediately perceived it."
Defense counsel then specifically addressed Prospective Juror No. 1, arguing the potential for her to relate more with defendant because his race and age were similar to her own sons and stepsons would not support a challenge for cause. Turning to Prospective Juror No. 5, counsel argued there was even less support for a challenge for cause with respect to her because "she stated she could be fair and it wouldn't be an issue." Counsel also opposed removing Prospective Juror No. 9 just because she expressed concerns about law enforcement abusing their power in relation to young men of color.
After hearing additional arguments from the prosecutor, the trial court excused Prospective Juror No 1, but not No. 5: "The Court finds sufficient basis to excuse Juror Number One for cause. The Court finds that she has expressed a potential bias and an inability to be impartial as relates to her duties as a selected juror. So Juror Number One is excused for cause. [¶] As relates to Juror Number Five, I agree with [the prosecutor's] representation in terms of Juror Number Five's characterization about having concern about anybody who would be of color. However, she did indicate that she would not be swayed. And so I do find thus far she has been able to demonstrate that she would be able to keep extraneous matters outside of the jury deliberation room should she be selected. So that one is denied."
As for Prospective Juror No. 9, the trial court brought her back into the courtroom for further questioning. She had responded to this issue only during the prosecution's voir dire, and defense counsel requested "further interaction" with her. The court questioned her first: "I wanted to take just a couple of moments to follow up on certain questions and answers that you gave. One question in particular was relative to have [sic] some thoughts about [defendant] being the same age and race as your half-brother ... And indicating it would enter into your mind during deliberations." Prospective Juror No. 9 responded: "Yes, it would." The court then asked: So my question for you is: Does that mean you would not be able to limit your deliberations to only what was presented in this courtroom, or would you be considering other facts and circumstances, including the presentation of [defendant] and how he may appear to be like your half-brother? Do you think you can separate the two and focus deliberations only on what's presented in this courtroom, or do you think otherwise ?" She answered: "I think otherwise ." In response to follow-up questioning, Prospective Juror No. 9 also stated: "I would feel uncomfortable knowing that [defendant's] life would rest on my decision and what the jurors say, and I don't think I could live with that ." (Italics added.)
Defense counsel was then permitted to follow up. He asked: "I'm just going to be blunt. You don't want to be part — if you had to convict [defendant], you don't want to be part of that process ?" Prospective Juror No. 9 responded: "That is correct. Yes ." (Italics added.)
The trial court ultimately excused Prospective Juror No. 9 for cause.
B. Analysis
On appeal, defendant asserts that because African-Americans have an unfavorable opinion about the treatment of African-Americans in the criminal justice system and will sympathize with African-American men being prosecuted, excluding African-American prospective jurors who express such sympathy results in a nonrepresentative jury.
1. Challenges for Cause and Standard of Review
A prospective juror may be excused for cause based on actual bias. ( Code Civ. Proc. § 225, subd. (b)(1).) Actual bias includes: "the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party ." ( Code Civ. Proc. § 225, subd. (b)(1)(C), italics added; People v. Horning (2004) 34 Cal.4th 871, 898, 22 Cal.Rptr.3d 305, 102 P.3d 228.)
" ‘[W]hat constitutes "actual bias" of a juror varies according to the circumstances of the case.’ " ( In re Manriquez (2018) 5 Cal.5th 785, 799, 235 Cal.Rptr.3d 787, 421 P.3d 1086, quoting People v. Nesler (1997) 16 Cal.4th 561, 580, 66 Cal.Rptr.2d 454, 941 P.2d 87 ( Nesler ).) The Attorney General points out the California Supreme Court has noted there is no particular constitutional test guiding what constitutes impartiality. He points to the following observation of our state's high court: "[i]n assessing whether a juror is ‘impartial’ for federal constitutional purposes, the United States Supreme Court has stated: ‘Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.’ " ( Nesler, at p. 580, 66 Cal.Rptr.2d 454, 941 P.2d 87, quoting United States v. Wood (1936) 299 U.S. 123, 145-146, 57 S.Ct. 177, .) But much has transpired since our high court's acknowledgment in Nesler in 1997 of the Wood court's observation from 1936 about there being no particular constitutional test. In the context of the selection of jurors in death penalty cases, a well-settled constitutional standard has evolved, which seems equally applicable in non-capital cases: a juror may be constitutionally excused for cause if the juror's views would " ‘prevent or substantially impair’ the performance of the juror's duties as defined by the court's instructions and the juror's oath." ( People v. Armstrong (2019) 6 Cal.5th 735, 750, 243 Cal.Rptr.3d 105, 433 P.3d 987 ( Armstrong ), citing Wainwright v. Witt (1985) 469 U.S. 412, 105 S.Ct. 844, and Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, ( Witherspoon ).) The duties of a juror include the duty to set aside personal feelings and opinions and decide the case based solely on the evidence and instructions provided by the court. ( Nesler , at pp. 580-581, 66 Cal.Rptr.2d 454, 941 P.2d 87, citing Irvin v. Dowd (1961) 366 U.S. 717, 722-723, 81 S.Ct. 1639, 6 L.Ed.2d 751 ; See also CALCRIM No. 200.) And one of the standard instructions given here and provided to all jurors in criminal cases contains the well-settled admonition not to let bias or sympathy influence their decision. (CALCRIM Nos. 101, 200; See also People v. Hawthorne (1992) 4 Cal.4th 43, 14 Cal.Rptr.2d 133, 841 P.2d 118.)
Ultimately, assessing juror qualifications falls within the trial court's broad discretion, and on appeal, reviewing courts " ‘will uphold the trial court's decision if it is fairly supported by the record, and accept as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has given conflicting or ambiguous statements.’ " ( People v. Ledesma (2006) 39 Cal.4th 641, 669, 47 Cal.Rptr.3d 326, 140 P.3d 657.) In other words, " ‘ " ‘[o]n review of a trial court's ruling, if the prospective juror's statements are equivocal or conflicting, that court's determination of the person's state of mind is binding.’ " ’ " ( People v. Clark (2011) 52 Cal.4th 856, 895, 131 Cal.Rptr.3d 225, 261 P.3d 243 ( Clark ); see also, People v. Solomon (2010) 49 Cal.4th 792, 830, 112 Cal.Rptr.3d 244, 234 P.3d 501 ( Solomon ); People v. Weaver (2001) 26 Cal.4th 876, 910, 111 Cal.Rptr.2d 2, 29 P.3d 103 ( Weaver ).) We afford this deference to trial courts out of recognition " ‘that a trial judge who observes and speaks with a prospective juror and hears that person's responses (noting, among other things, the person's tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record.’ " ( People v. Avila (2006) 38 Cal.4th 491, 529, 43 Cal.Rptr.3d 1, 133 P.3d 1076 ( Avila ); See also Uttecht v. Brown (2007) 551 U.S. 1, 9, 127 S.Ct. 2218, .)
2. Defendant's Constitutional Challenge
"[T]he right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution." ( People v. Wheeler (1978) 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748 ( Wheeler ) [unconstitutional use of peremptory challenges], reversed on other grounds, Johnson v. California (2005) 545 U.S. 162, 125 S.Ct. 2410, ; see also People v. Burgener (2003) 29 Cal.4th 833, 855, 129 Cal.Rptr.2d 747, 62 P.3d 1 [constitutional challenge to the jury pool].) "The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. [Citations.] This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups." ( Thiel v. Southern Pac. Co. (1946) 328 U.S. 217, 220, 66 S.Ct. 984, ( Thiel ).) Defendant cites Thiel in making the claim that the trial court's "procedure ... rendered [defendant's] jury non-representative by systematically excluding a cognizable class from jury service."
In Thiel , the representative cross-section mandate was violated, and reversal was required, where the clerk of the court and the jury commissioner "deliberately and intentionally excluded from the jury lists all persons who work for a daily wage." ( Thiel , supra , 328 U.S. at p. 221, 66 S.Ct. 984.) The vice in Theil was a "blanket exclusion" of all daily wage earners based solely on the assumption that all such prospective jurors would claim financial hardship. ( Id . at p. 224, 66 S.Ct. 984.) The high court recognized, however, there is no constitutional violation when a judge excuses a daily wage earner after determining that individual has a financial hardship. ( Ibid . )
There is, similarly, no constitutional violation where a court determines a prospective juror cannot be impartial, for whatever reason. Under both the state and federal Constitutions, an accused is guaranteed the right to be tried by an impartial jury. ( Cal. Const., art. I, § 16 ; U.S. Const., 6th & 14th Amends.) But there is no constitutional right to a jury consisting of jurors who are partial or biased in the accused's favor.
Defendant, however, argues "the superior court's procedure involved striking African-American jurors for cause if they said they might be influenced by their experiences and opinions regarding the harshness of the criminal justice system toward African-Americans." Such prospective jurors form a cognizable group, he maintains, because "many African-Americans ... believe the criminal justice system treats African-Americans too harshly." Defendant reasons: "a procedure that strikes prospective jurors for cause based on such beliefs will necessarily result in striking many, if not most, African-American prospective jurors. Such a result is intolerable if the goal is to produce a racially and ideologically representative jury."
In making this argument, defendant relies primarily on a case from the District of Columbia Court of Appeals, Mason v. United States (2017) 170 A.3d 182 ( Mason ). While we agree with aspects of the Mason court's decision, Mason is factually distinct and does not help defendant.
In Mason , in response to the trial court's voir dire question about immediate family or close friends that had been arrested for, charged with, or convicted of a crime, a prospective juror stated her brother had such an experience in Texas. She said the family suspected it was the result of racial profiling, and he had been treated unfairly. ( Mason , supra , 170 A.3d at p. 185.) When asked whether her views about her brother would affect her ability to be impartial in the case, she responded: "I mean I think I can be impartial . I mean I think it's shaped my view of the world. But I don't know the details of this case. I don't think I would see my brother in it. His situation is different . But I definitely, that's my experience with the system." ( Ibid. , italics added.) When the prosecutor asked if she thought African-American men were treated unfairly in D.C., the juror responded she thought they were, and "things are tilted in the wrong direction." On the prosecution's motion, the trial court excused the prospective juror for cause. ( Ibid . ) Mason held this was error. ( Id . at p. 187.) As defendant here points out, the court in Mason took note of a 2013 study indicating "68% of [African-Americans] believed that [they] are treated less fairly than [W]hites in the courts." ( Mason, supra, 170 A.3d at p. 185 ) The court also noted "concern about the racial fairness of the criminal-justice system" has been "repeatedly expressed" by "courts and other official bodies." ( Id . at p. 186.) It concluded the improper exclusion of a prospective juror solely because of such a belief required reversal, notwithstanding the general rule that reversal is not required for the erroneous excusal of a prospective juror so long as the jury ultimately seated is fair and impartial. ( Id . at p. 188.) In so concluding, the court relied in part on Supreme Court authority requiring reversal of a judgment of death where "capital-sentencing jurors were erroneously disqualified on the basis of their views about the death penalty." ( Id . at p. 189 ; citing Witherspoon supra, 391 U.S. 510, 521-522, 88 S.Ct. 1770.)
As Justice Liu recently noted, based on a more recent study by the Pew Research Center, "a substantial majority of Americans believe the criminal justice system treats Blacks less fairly than whites"— "84% of Black respondents, 63% of white respondents and 67% of all respondents in a survey of 6,637 adults." (People v. Triplett (2020) 48 Cal.App.5th 655, 688-689, 267 Cal.Rptr.3d 675, dis. statement regarding denial of review of Liu, J., citing Horowitz et al., Pew Research Center, Race in America 2019 (Apr. 9, 2019) pp. 11, 46.)
The Mason court articulated a rule with which we agree: "Standing alone , the belief that the criminal-justice system is systemically unfair to blacks is not a basis to disqualify a juror." ( Mason, supra, 170 A.3d at p. 187, italics added.) The Mason court explained: "[T]hat belief is neither uncommon nor irrational. Moreover, there is no basis for an inference that potential jurors holding that belief are necessarily unable to be impartial. To the contrary, potential jurors who hold that belief might well be particularly attentive to making sure that they perform their function impartially." ( Id . at p. 187.) We agree with that as well. But we also agree with the Mason court's observation: "It is possible that a potential juror who believes that the criminal-justice system is unfair to blacks might respond to that belief by having difficulty being impartial. Where a trial judge makes that finding based on an adequate record, the potential juror can appropriately be disqualified for cause." ( Id . at p. 187.) We conclude that is what happened here. Prospective Juror No. 9 was unequivocal about her inability to be impartial. In addition to her general concerns about law enforcement, she indicated the fact that defendant reminded her of her half-brother would influence her decision making. When asked if her thoughts about defendant being the same age as her half-brother "would enter into her mind during deliberations," she responded: "Yes, it would." The court sought to clarify: "Does that mean you would not be able to limit your deliberations to only what was presented in the courtroom, or would you be considering other facts and circumstances, including the presentation of [defendant] and how he may appear to be like your half-brother? Do you think you can separate the two and focus deliberations only on what's presented in this courtroom, or do you think otherwise?" She responded: "I think otherwise." In response to further questions, she stated: "I would feel uncomfortable knowing that [defendant's] life would rest on my decision and what the jurors say, and I don't think I could live with that." And when asked, "if you had to convict [defendant], you don't want to be part of that process?" Prospective Juror No. 9 responded: "That is correct. Yes." These responses support the trial court's conclusion that Prospective Juror No. 9 could not be impartial in this case.
We note this rule is consistent with new provisions concerning peremptory challenges in Assembly Bill 3070 (Stats. 2020, ch. 318, §§ 1 -3 ), enacted in 2020 and operational January 1, 2022. Under Civil Code of Procedure section 231.7, subdivision (e)(1)-(3), "[e]xpressing a distrust of or having a negative experience with law enforcement or the criminal legal system," "[e]xpressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner," and "[h]aving a close relationship with people who have been stopped, arrested, or convicted of a crime" are presumptively invalid reasons for exercising a peremptory challenge against a prospective juror who is a member of a cognizable group.
A second reason also supported the prosecutor challenge to Prospective Juror No. 9 for cause: she stated she would not be able to look at graphic photographs. The prosecutor asked the panel about unpleasant photographs during the prosecution's voir dire, and defense counsel asked about it when Prospective Juror No. 9 was brought back into the courtroom. Immediately after responding to defense counsel's question, the trial court excused her. In short, sustaining the challenge as to Prospective Juror No. 9 was not a close call.
During the prosecution's voir dire, the prosecutor asked the panel whether any of them were concerned about looking at unpleasant or graphic photographs that would be part of the evidence the jury would be required to consider. After two other jurors expressed such a concern, Prospective Juror No. 9 responded: "The same. Pretty queasy when I look at gross stuff." The prosecutor asked: "Understanding that you're queasy, will you be able to follow your obligation to look at the evidence if that was part of the evidence?" Prospective Juror No. 9 answered: "Probably not, no." When she was brought back into the courtroom for additional voir dire, after asking about her not wanting to be part of the process of convicting defendant, defense counsel asked: "There are going to be photographs — or there will be photographs of something that may be shocking. [¶] And is it your position that you can't even for 30 seconds look at them?" Prospective Juror No. 9 responded: "No." Counsel began to follow-up: "—digest them and then move on?" She responded: "No, not at all." It was then that the trial court excused Juror No. 9.
Prospective Juror No. 1 provided more equivocal responses regarding her ability to be impartial. After expressing "a concern with law enforcement in general," adding "particularly because I have two young adult sons and two young adult stepsons," she nevertheless stated that she felt she "could be fair" to any police officer who took the witness stand. She then described her experience at a demonstration, where police officers appeared "standoffish." But she indicated this would not make her less likely to believe an officer's testimony. Still, she acknowledged her concern for the young African-American men in her family regarding their interactions with law enforcement and further acknowledged she would "probably" be swayed to be more sympathetic to defendant because, as she put it, "he's probably about my children's age."
At this point, after acknowledging "this may not be the best trial for you," defense counsel asked: "If everything was equal, at the end of this trial ... is the fact that he reminds you of your boys going to sway you to vote our direction and that being the only reason that you would vote for us?" Prospective Juror No. 1 answered: "All things being equal, I can't say that it would sway me, but it would be something that I would consider ." (Italics added.) The prosecutor later asked: "You said that if you were chosen as a juror and you were sitting in the jury deliberation room, that that might enter into your deliberations. You might be swayed. [¶] What if the defendant were of a different race or ethnic background? Or specifically, let's say if the defendant were [W]hite ." Prospective Juror No. 1 answered: "For me personally, it would be different because I wouldn't be able — I wouldn't as easily be able to identify with that, someone who was [W]hite, reminding me of my children, as I am with — in this current situation. [¶] So it would still have an impact because I would see it as a young life. But I wouldn't see — I wouldn't as easily — I wouldn't be able to as easily visualize my child in that situation ." (Italics added.) When the prosecutor followed up with, "So because you have children who may be of a similar age, that's what your concern is? " She replied: "That's part of it, yes. " (Italics added.)
Prospective Juror No. 1 did not explicitly state that she would be swayed to vote to acquit defendant either because of her concerns about the treatment of young men of color in the criminal justice system or because defendant reminded her of her children, but she did state the latter reason would "probably" sway her to be more sympathetic towards him. And as noted, she expressly stated the fact defendant reminded her of her family members "would be something that I would consider" and later stated the fact that she had children of a similar age was "part of" her concern. A decision based on such considerations would not be one based solely on the evidence and instructions. Indeed, such a decision would not be consistent with the instruction not to be influenced by bias or sympathy in decision making. (CALCRIM Nos. 101, 200)
On this record, we cannot say the trial court abused its discretion in excusing Prospective Juror No. 1. At no point did Prospective Juror No. 1 assure the court her ultimate decision would not be swayed by sympathy or her bias toward people who reminded her of her loved ones. Indeed, Prospective Juror No. 1 stands in contrast to Prospective Juror No. 5, the African-American the trial court refused to excuse for cause. When asked whether her general concerns about how African-Americans are treated by the justice system would keep her from being fair to the prosecutor or sway her opinion about the evidence towards defendant, Prospective Juror No. 5 said, "I don't think that it will." The trial court, being present in the courtroom and observing Prospective Juror No. 5's demeanor and presentation when she gave that response, must have credited the juror's assessment of her state of mind, because the court denied the prosecution's challenge for cause.
Likewise, the trial court could also observe Juror No. 1's demeanor and presentation. Additionally, the court heard her tone of voice and was in a position to glean her level of confidence from what the court observed and heard. ( Avila, supra , 38 Cal.4th at p. 529, 43 Cal.Rptr.3d 1, 133 P.3d 1076.) With these advantages over us, the trial court found that Juror No. 1 could not impartial. We defer to the court's determination under these circumstances, because the trial court is in the best position to determine the potential juror's true state of mind. ( Uttecht, supra , 551 U.S. at pp. 7-10, 127 S.Ct. 2218 ["Deference is owed regardless of whether the trial court engages in explicit analysis regarding substantial impairment; even the granting of a motion to excuse for cause constitutes an implicit finding of bias"]; Clark , supra , 52 Cal.4th at p. 895, 131 Cal.Rptr.3d 225, 261 P.3d 243 ; Avila , at p. 529, 43 Cal.Rptr.3d 1, 133 P.3d 1076.) And, as our high court's well-settled rule mandates, if the prospective juror's statements are ambiguous, equivocal or conflicting, the trial court's determination of the prospective juror's state of mind is binding. ( Clark , at p. 895, 131 Cal.Rptr.3d 225, 261 P.3d 243 ; Solomon, supra , 49 Cal.4th at p. 830, 112 Cal.Rptr.3d 244, 234 P.3d 501 ; Ledesma, supra, 39 Cal.4th at p. 668, 47 Cal.Rptr.3d 326, 140 P.3d 657 ; Weaver, supra , 26 Cal.4th at p. 910, 111 Cal.Rptr.2d 2, 29 P.3d 103.)
Nevertheless, it bears noting that, "[o]ther than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process." ( Flowers v. Mississippi (2019) ––– U.S. ––––, ––––, 139 S.Ct. 2228, 2238, [addressing discriminatory peremptory challenges].) African-American prospective jurors have an equal protection right not to be excused from jury service based on the assumption they will be biased towards an African-American defendant. ( Foster v. Chatman (2016) 578 U.S. 488, 136 S.Ct. 1737, 1741-1742, 195 L.Ed.2d 1 [same]; Batson v. Kentucky (1986) 476 U.S. 79, 97-98, 106 S.Ct. 1712, [same].) Trial courts should be careful to ensure that jurors’ equal protection rights to participate in our democracy are not violated. Still, when a prospective juror's state of mind would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath (see Armstrong, supra, 6 Cal.5th at p. 750, 243 Cal.Rptr.3d 105, 433 P.3d 987 ; Clark, supra, 52 Cal.4th at p. 895, 131 Cal.Rptr.3d 225, 261 P.3d 243 ), the juror may be constitutionally excused for cause. The record here supports a finding that Prospective Jurors No. 1 and No. 9 were substantially impaired by their bias and sympathy. Giving the deference to the trial court our high court has said we must give, we conclude the trial court did not abuse its discretion by excusing them, and defendant's constitutional right to a jury drawn from a representative cross-section of the community was not violated.
Likewise, the record also supports a finding under Code of Civil Procedure section 225, subdivision (b)(1)(C), that Prospective Jurors No. 1 and No. 9 had a "state of mind" which would have prevented them "from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Italics added.)
II. Dismissal of a Seated Juror During Trial
Defendant contends the trial court prejudicially abused its discretion in discharging a sitting juror for dishonesty during trial. We conclude the trial court erred because the juror's inability to perform his duty does not appear in the record as a demonstrable reality. The error, however, was harmless.
A. Additional Background
On the tenth day of trial, before bringing in the jury for the afternoon session, the trial court stated that an interaction between a juror and a colleague of defense counsel needed to be placed on the record. That colleague, attorney Steven Taxman, was present in the courtroom. Taxman explained that he went to a coffee shop near the courthouse early that morning to do some work before going to court. A person Taxman later realized was Juror No. 2 was also doing some work at the coffee shop. Taxman described the interaction to the trial court.
Taxman explained that he realized the person was Juror No. 2 when he came to court later in the day and saw him coming out of one of the courtrooms with the rest of the jury. He then notified defense counsel about the interaction.
Taxman said he sneezed and the man said, " ‘God bless you.’ " Taxman said he thanked the man and told the court the following transpired: "I just chatted with him for a second. And I said, ‘You like working here? It's a great place to work.’ And he goes, ‘Oh, yeah, I'm just working here because I'm on jury duty .’ And I'm like, ‘Oh.’ And I didn't identify myself as an attorney. I said, ‘Well, I hope you have a really nice experience doing that. It was nice talking with you.’ And he said, ‘Well, yeah, it's nice, but I'm looking forward to it being over .’ And that was it." (Italics added.) Taxman said once he heard the man was a juror, there was no reason to talk to him. When Taxman left the coffee shop, he told the man, " ‘Have a nice day.’ "
The court asked Taxman follow-up questions about his chat with the juror. Changing his rendition slightly, Taxman said: "I asked him if he liked working here because he was working on his computer and so was I. So we were both kind of working away. And then that was the extent of the discussion until I sneezed. I sneezed. And he said, ‘God bless you.’ And I said, "Thank you." And I said, ‘Do you like working here?’ And that's when he told me what he did and the reason why he was working there was because he was on jury duty . And then when I heard that, I didn't talk to him any more about anything, other than I just said, ‘I hope you enjoy your experience. It should be a rewarding experience.’ And he said ‘I'm looking forward to it being over .’ " (Italics added.)
The trial court noted that many jurors "for a variety of reasons look forward to their jury service being over" and asked for comments from the prosecutor and defense counsel. The prosecutor asked to have Juror No. 2 discharged noting "two occasions where Mr. Taxman approached [defense counsel] while the jury was [in the courtroom]" and engaged in "friendly interaction," which would have indicated to the jury "that they were either friendly, or associated, or something to that effect." In response, defense counsel acknowledged, "Mr. Taxman did come and approach me — I think maybe it was upwards of three times — while I was at counsel's table. And I do remember him putting his hand on my shoulder once. Whether or not the jurors saw something, I don't know." Defense counsel argued the "coincidental" interaction between Taxman and Juror No. 2 at the coffee shop, coupled with the possibility jurors saw Taxman and defense counsel were friendly colleagues, while "a little awkward," did not support removal of the juror. The trial court decided to hear from Juror No. 2 and asked counsel if there was any objection. Both the prosecutor and defense counsel said they had none. Defense counsel noted Juror No. 2 might not even remember the interaction.
The prosecutor said her request to discharge Juror No. 2 was being made "In conjunction with everything that happened this morning." At the beginning of the morning session, Juror No. 2 volunteered to the court that he was acquainted with S.S.’s father from their work in separate non-profits. He explained he did not know her father personally, their non-profits had only interacted three times, and he had not recognized S.S.’s name from the witness list because when the name was read, it had been mispronounced. He said when he realized he knew S.S.’s father, his reaction was "I gotta tell somebody." He, however, indicated his acquaintance would not affect how he evaluated S.S.’s testimony. The prosecutor stated a preference to excuse Juror No. 2, but acknowledged the matter did not rise to the level of cause. The court stated: "I found [Juror No. 2's] responses to be candid and thoughtful" and I don't think it rises to the level of cause." It then ruled: "I find that he will be able to faithfully perform his duties, assess the facts, and apply the law as I give it to him. So I'm going to allow him to remain."
The trial court asked the juror: "I understand you had a brief interaction with some person over at the cafe, restaurant, little deli over on G Street this morning. Do you recall that, sir?" Juror No. 2 answered: "Nothing other than ‘hello’ or ordering my food." The trial court then asked: "Do you recall making any comments to any of the other persons inside the [coffee shop] about looking forward to this trial being over ?" (Italics added.) Juror No. 2 answered: "No." The trial court then asked: "Do you recall interacting with another male patron who was working on his computer and may have sneezed? To that question, Juror No. 2 responded: "I do." Asked what he recalled about that, Juror No. 2 explained: "I think we were both on our laptops. And he said it's a good place to get work done. And I said, ‘Yeah, I come here in the morning.’ I've been there every morning to get my work done before I go to the courthouse." Asked whether he recalled "anything else being said," the juror answered: "No."
After questions about whether he was wearing his juror badge, the court asked: "Anything else that you recall about that interaction, that exchange, what he may have said to you or what you might have said to him, sir? The juror responded: "No. I had my headphones on. And I was — I actually wasn't on the phone but I was — I leave the headphones on so people don't talk to me. And I remember he said something and I took the headphones off and we talked about it being a good place to get work done." The court asked, "Do you remember how the conversation ended, parting words ?" (Italics added.) Juror No. 2 responded: "I said ‘have a good rest of your day.’ " The court concluded, "And that's all you recall?" to which the juror responded, "That's all I recall." Neither counsel had additional questions.
After Juror No. 2 was excused from the courtroom, the trial court asked for additional comments from counsel. The prosecutor responded: "What concerns me is that we have a differing account. Mr. Taxman represented that he specifically said that he was looking forward to the trial being over. I'm not certain why he would make that up. So I would tend to believe him. I can't see why he would draw that and bring this up as an issue [Juror No. 2] is denying. That was a direct question from the Court, and he specifically denied that. That concerns me." The trial court asked the prosecutor: "What if [Juror No. 2] denied it because it was so insignificant he simply didn't recall it?" The prosecutor expressed disbelief of that conclusion and pointed to the fact Juror No. 2 remembered other particulars of the conversation — the sneezing, being on his laptop, the conversation about the coffee shop being a good place to work and having his headphones on. The prosecutor added: "But the one thing that he should not be doing is talking about anything regarding — jury duty is the one thing he says he does not remember."
The trial court then heard from defense counsel: "It just appeared to me, for what it's worth, that he was a little startled and had a little bit of memory recall problems at the beginning of your conversation — with you being the Court — in what seemed innocent, and he slowly started to recall the more that came out. [¶] I'm submitting, your Honor. I think it's harmless." Neither the court, nor the prosecutor disagreed with counsel's observation regarding the juror's gradual memory recall. After a brief recess, the trial court stated it probably should have taken Taxman's statement under oath and perceived the need to do that. The court then shared its tentative thinking, stating there was no reason to believe Taxman was lying about his interaction with the juror, "[a]nd if that's the case, then I have a record that suggests this juror is not being truthful. And the Court, I think, is forced into a scenario where there would be cause to excuse him." (Italics added.)
Later, when Taxman returned to the courthouse, he was placed under oath. The court asked Taxman to "reiterate [his] interaction" with Juror No. 2. Taxman gave a slightly different rendition this time. He stated after he got to the coffee shop, he went to a table where Juror No. 2 was seated. Taxman explained: "He had all his things out on the table, doing computer work, and so was I. So I was doing computer work. He was doing computer work. I was minding my own business. He was minding his own business. I didn't see a juror badge. [¶] So I sneezed. And he said, " ‘God bless you.’ " Taxman said he was impressed that a stranger would say that so he felt obligated to talk to him. Taxman continued: "And I said, ‘Oh, do you like working here, too?’ And he goes, ‘Yeah, I like working here, but I'm on jury duty .’ He said ‘jury duty .’ And I said to him, ‘Oh, are you on a panel? Are they selecting, or are you on a case?" And he said, ‘I'm on a case.’ And when I heard him say, ‘I'm on a case,’ I'm like — I cut off the conversation. I didn't want to have anything more to say to him and I didn't say anything. I think I went back to computing. And I said something like, ‘Well, I hope you really enjoy your experience. It should be very rewarding.’ And he said something like, ‘Yeah, I'm looking forward to it being over.’ And I said, ‘Have a nice day. It was nice talking to you.’ And then I left and went to court. And that was it." (Italics added.)
After Taxman was excused, the court ruled, stating: "Based on the information provided by Mr. Taxman, particularly under oath, this Court finds that there are questions regarding the truthfulness of Juror Number Two . The Court is going to thank and excuse Juror Number Two from the jury." (Italics added.)
B. Analysis
1. Excusing Seated Jurors for Cause
Penal Code section 1089 authorizes a trial court to discharge a seated 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 or her duty ." (Italics added.) Thus, before excusing a seated juror, the trial court must find there is good cause to believe the juror is unable to perform his or her duty.
"[A]n appellate court's review of the decision to remove a seated juror is not conducted under the typical abuse of discretion standard, but rather under the ‘demonstrable reality’ test." ( People v. Fuiava (2012) 53 Cal.4th 622, 711, 137 Cal.Rptr.3d 147, 269 P.3d 568.) The demonstrable reality test "requires a ‘stronger evidentiary showing than mere substantial evidence.’ " ( People v. Wilson (2008) 44 Cal.4th 758, 821, 80 Cal.Rptr.3d 211, 187 P.3d 1041, citing People v. Cleveland (2001) 25 Cal.4th 466, 488, 106 Cal.Rptr.2d 313, 21 P.3d 1225 ( Cleveland ), conc. opn. of Werdegar, J.) Our high court in Wilson emphasized: " ‘To dispel any lingering uncertainty, we explicitly hold that the more stringent demonstrable reality standard is to be applied in review of juror removal cases. That heightened standard more fully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury.’ " ( Wilson , at p. 821, 80 Cal.Rptr.3d 211, 187 P.3d 1041.)
In Armstrong , our high court further clarified the demonstrable reality test, contrasting it to the substantial evidence test: " ‘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.... [¶] 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 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." ( Armstrong, supra , 1 Cal.5th at pp. 450-451, 205 Cal.Rptr.3d 518, 376 P.3d 640.)
We distill the following summary from our high court's explanation of the demonstrable reality test set forth above: (1) The demonstrable reality test is a heightened standard requiring a stronger evidentiary showing than the substantial evidence test, which looks at the evidence in a light most favorable to the judgment; (2) however, like the substantial evidence test, reviewing courts do not reweigh the evidence; (3) but a reviewing court must look only to the evidence upon which the trial court actually relied in determining whether the trial court's decision is supported by the evidence; thus reviewing courts may not base their decision on evidence upon which the trial court did not actually rely; (4) in addition to the evidence upon which the trial court relied, a reviewing court must consider the reasons the trial court gives for its ruling; (5) because a reviewing court must consider "the record of the reasons the trial court provides," reviewing courts cannot imply findings the trial court did not expressly make; and (6) because a reviewing court cannot imply findings, the trial court should expressly state its reasons for discharging the juror, including demeanor-based reasons and credibility findings. As to this last point, our high court said some time ago: "A trial court facilitates review when it expressly sets out its analysis of the evidence, why it reposed greater weight on some part of it and less on another, and the basis of its ultimate conclusion ... In taking the serious step of removing a ... juror the court must be mindful of its duty to provide a record that supports its decision by a demonstrable reality." ( People v. Barnwell (2007) 41 Cal.4th 1038, 1053, 63 Cal.Rptr.3d 82, 162 P.3d 596 [removal of sitting juror for deliberation misconduct].)
2. Propriety of the Trial Court's Investigation
Defendant first argues the trial court abused its discretion by inquiring into Juror No. 2's ability to continue to serve on the jury because "a hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror's ability to perform his [or her] duties," citing People v. Ray (1996) 13 Cal.4th 313, 343, 52 Cal.Rptr.2d 296, 914 P.2d 846 ( Ray ). According to defendant, Taxman's summary of his coffee shop conversation with Juror No. 2 was insufficient to justify the juror's removal and thus, the court's investigation was improper.
This argument is forfeited. Defense counsel was asked whether he objected to the trial court questioning Juror No. 2 and answered: "No." The failure to object forfeits the assertion that the questioning itself amounted to a prejudicial abuse of discretion. (See People v. Wilson (2008) 43 Cal.4th 1, 25, 73 Cal.Rptr.3d 620, 178 P.3d 1113, abrogated on another point as stated in People v. Johnson (2018) 6 Cal.5th 541, 587, 241 Cal.Rptr.3d 782, 432 P.3d 536.)
And even if preserved, we would conclude the trial court did not err by conducting an investigation. As our high court noted in Ray , "[t]he decision whether to investigate the possibility of juror bias, incompetence, or misconduct ... rests within the sound discretion of the trial court." ( Ray, supra , 13 Cal.4th at p. 343, 52 Cal.Rptr.2d 296, 914 P.2d 846.) And as the trial court noted here, jurors might look forward to their jury duty being over for a "variety of reasons." It was within the court's discretion to determine whether Juror No. 2 had outside life circumstances that might make it difficult to perform his duty such that there would be good cause to discharge him under section 1089. But that is not the direction the investigation took, and defendant has not forfeited his assertion that the trial court abused its discretion in discharging Juror No. 2, so we turn to that ruling.
3. Demonstrable Reality Analysis
The Attorney General acknowledges that the demonstrable reality test applies here. He notes that a lack of candor during voir dire may lead to discharge of a juror under section 1089 when the false or misleading nature of voir dire statements comes to light during trial. (See People v. Johnson (1993) 6 Cal.4th 1, 22, 23 Cal.Rptr.2d 593, 859 P.2d 673, abrogated on another point in People v. Rogers (2006) 39 Cal.4th 826, 879, 48 Cal.Rptr.3d 1, 141 P.3d 135 ; In re Hitchings (1993) 6 Cal.4th 97, 110-114, 24 Cal.Rptr.2d 74, 860 P.2d 466 ( Hitchings ).) He further argues "[t]here is no reason to treat a juror's untruthful answers given during a mid-trial hearing any differently."
On the contrary, there is good reason to treat this situation differently. As our high court explained in Hitchings , a prospective juror who conceals material facts or gives false answers during voir dire deprives both sides of the right to intelligently exercise for-cause and peremptory challenges and undermines the integrity of the jury trial process. ( Hitchings, supra, 6 Cal.4th at pp. 110-112, 24 Cal.Rptr.2d 74, 860 P.2d 466.) That is not a concern in the instant context.
Moreover, even in the context of voir dire statements, the law accounts for failure to recall and innocent mistakes. "[M]ere inadvertent or unintentional failures to disclose [during voir dire] are not accorded the same effect [as intentional concealment]. ‘[T]he proper test to be applied to unintentional "concealment" is whether the juror is sufficiently biased to constitute good cause for the court to find under [ section 1089 ] that [the juror] is unable to perform his [or her] duty.’ " ( People v. McPeters (1992) 2 Cal.4th 1148, 1175, 9 Cal.Rptr.2d 834, 832 P.2d 146, superseded by statute on another point as stated in People v. Boyce (2014) 59 Cal.4th 672, 707, 175 Cal.Rptr.3d 481, 330 P.3d 812.)
Here, the purported failure to disclose related to a statement the juror made to a stranger about jury duty before court one morning. Contrary to the prosecutor's statement to the trial court, and the trial court's second question to Juror No. 2, the juror never said he was looking forward to "the trial" being over. Juror No. 2 said he was looking forward to his "jury duty" being over. In his first rendition of the conversation, Taxman told the court Juror No. 2 said, " ‘I'm on jury duty ,’ " to which Taxman replied, " ‘Well, I hope you have a really nice experience doing that," and Juror No. 2 responded, " ‘Well, yeah, it's nice, but I'm looking forward to it being over.’ " Taxman told the court, "that was it." (Italics added.) In his second and third renditions of the conversation, which were slightly different from the first, Taxman told the court that at some point after Juror No. 2 said he was on "jury duty ," he told the juror something like, " ‘Well, I hope you really enjoy your experience. It should be very rewarding,’ " to which Juror No. 2 "said something like, ‘Yeah, I'm looking forward to it being over.’ " (Italics added.) In the context of Taxman's renditions, the "it" in Juror No. 2's statement referenced "jury duty." Taxman never said Juror No. 2 stated he was looking forward to the "trial" being over.
The nuance between "trial" and "jury duty" may seem unimportant, but it must be taken into account when evaluating Juror No. 2's response to the trial court's questions, which the Attorney General argues was dishonest. The second question the trial court asked Juror No. 2 was: "Do you recall making any comments to any of the other persons inside the [coffee shop] about looking forward to this trial being over?" (Italics added.) The evidence does not establish that his response of "No" was untrue.
First, the questioning took place during the afternoon session, after Juror No. 2 had been focused on the morning's testimony. And this particular question was posed before the trial court refreshed Juror No. 2's recollection about the morning conversation in the coffee shop by providing some of the circumstances, namely the reference to the person working on his computer and the sneeze. Indeed, defense counsel predicted Juror No. 2 might not remember the conversation and later told the court he thought Juror No. 2 was having "memory recall problems at the beginning," that "seemed innocent" and that "he slowly started to recall the more." There is no evidence in the record indicating the juror should have immediately remembered the conversation he had with Taxman when the court asked the first two questions. To the contrary, Juror No. 2 had been in a coffee shop, he had his headphones on, and was working on his computer — his usual morning routine during the trial — when he had an innocuous conversation with a stranger. It is not at all clear that Juror No. 2 truly did remember the conversation when the court asked him whether he recalled it in its first two questions. And innocent misrecollection is not concealment or dishonesty.
Taxman himself called the conversation "very innocuous."
Second, even assuming Juror No. 2 recalled having a conversation with a stranger, we must look to what he was asked about it. In the trial court's second question, he was asked whether he recalled making a statement "about looking forward to the trial being over ," but no evidence establishes that he ever made that statement. He made a comment about looking forward to his "jury duty" being over. Thus, if he did not make the statement he was asked about, there was no reason for him to recall it, and it was not untrue for him to say he did not recall it. Moreover, the trial court never asked Juror No. 2 whether he, in fact, was looking forward to the trial or his jury duty being over. Such a question would have revealed how the juror was feeling as opposed to his memory of what had been said and could have resulted in an answer that might justify his dismissal under section 1089. Indeed, the court posed no questions that would have revealed if Juror No. 2 might have been distracted by outside life circumstances that might cause him to be unfocused during the testimony or deliberate more quickly than he might have otherwise.
The decisional law suggests precision in questioning jurors during voir dire is important and a juror does not commit voir dire concealment misconduct when questions are imprecise. (See People v. Majors (1998) 18 Cal.4th 385, 418-419, 75 Cal.Rptr.2d 684, 956 P.2d 1137 [juror did not commit voir dire concealment misconduct when he answered "no" to questionnaire question, "Are you or any close friend or relative associated with any federal, state or local law enforcement agency or other governmental office such as ... the Department of Corrections," because the people the juror later referred to as "buddies" who worked for Corrections were actually only acquaintances and not "close friends"; juror did not commit misconduct when he answered "no" to question, "Do you know anyone whom you believe to be a drug user or seller?" because although his wife sold cocaine when she was a teenager, he did not know her at the time and he understood the question to related to present use or sale of drugs]; People v. Dyer (1988) 45 Cal.3d 26, 58-59, 246 Cal.Rptr. 209, 753 P.2d 1 [juror did not commit misconduct by giving answer to an ambiguous question she believed to be true]; People v. Blackwell (1987) 191 Cal.App.3d 925, 929, 236 Cal.Rptr. 803 [voir dire concealment misconduct turns in part on whether the question posed was unambiguous; voir dire questions must be "sufficiently specific to elicit the information which is not disclosed, or as to which a false answer is later shown to have been given"]; Cabe v. Superior Court (1998) 63 Cal.App.4th 732, 74 Cal.Rptr.2d 331 [partially responsive, but "literally true" response to a compound question cannot serve as the basis for a perjury charge against a juror related to alleged voir dire concealment].) Just as precision is important in posing voir dire questions, precision is also important in posing juror misconduct investigation questions.
As noted, the prosecution argued in the trial court that deception could be inferred from Juror No. 2's ability to remember conversation particulars but failed to recall the statement he is alleged to have made. The Attorney General makes the same argument on appeal. But the trial court did not base its decision on this inference, and under the demonstrable reality test, we do not evaluate the evidence in the light most favorable to the trial court's decision and accept all inferences that support that decision. ( Armstrong, supra , 1 Cal.5th at pp. 450-451, 205 Cal.Rptr.3d 518, 376 P.3d 640 ) Rather, our focus must be on the evidence upon which the trial court actually relied and the reasons the trial court gave for the decision. ( Ibid . )
Moreover, the record more persuasively demonstrates that Juror No. 2 did not immediately recall the conversation in the coffee shop earlier that day, and it was the court's reminder of those details in its third question that refreshed his recollection. Furthermore, the record demonstrates Taxman's recall was not perfect either, as his three renditions were not one hundred percent consistent. Juror No. 2 was given only one opportunity to explain what happened that morning. In conducting a misconduct investigation regarding conversations, trial courts must be sensitive to the fact that human beings are not digital recorders and should not be expected to replay a conversation verbatim out of the blue, especially when the circumstances suggest the juror probably never thought he would be required to remember having the conversation, let alone exactly what was said.
The only reasons the trial court gave for its ruling related to a perceived conflict between the accounts of Taxman and Juror No. 2 and the lack of evidence indicating Taxman had a motive to lie. Prior to having Taxman return to the courtroom, the court noted there was no reason to believe Taxman was lying, and then stated: "[a]nd if that's the case, then I have a record that suggests this juror is not being truthful. And the Court, I think, is forced into a scenario where there would be cause to excuse him." (Italics added.) Ultimately the court ruled: "Based on the information provided by Mr. Taxman, particularly under oath, this Court finds that there are questions regarding the truthfulness of Juror Number Two." (Italics added.) But the court merely ruled there were "questions" regarding Juror No. 2's truthfulness; it did not rely upon the inference the prosecutor argued and it never found that Juror No. 2 had lied or was dishonest.
The court's reluctance to specifically find that Juror No. 2 lied is understandable given the circumstances discussed ante . And without an express finding that Juror No. 2 was dishonest or concealed information, supported by evidence upon which the court actually relied, good cause to discharge him is not established to a demonstrable reality.
At best, the evidence established that Juror No. 2 was looking forward to his jury duty being over, a sentiment that does not strike us unusual for jurors in a lengthy trial, especially when trying to juggle work and perform their civic duty at the same time. Such a feeling did not signal that the juror could not perform his duty or was biased; nor did his failure to recall making such a statement establish he was unable to perform his duties. Indeed, separate from the issue of his credibility, the statement Juror No. 2 is said to have made was not material to either the case or his ability to serve. It appears the trial court presumed the worse of Juror No. 2. But as this court has recognized, under the demonstrable reality test, courts may not " ‘presume the worst’ of a juror." ( People v. Bowers (2001) 87 Cal.App.4th 722, 729, 104 Cal.Rptr.2d 726 ( Bowers ).)
Nor did the fact that Juror No. 2 mentioned he was on jury duty to Taxman indicate he was unable to perform his duties. It is true that "[i]n appropriate circumstances a trial judge may conclude, based on a juror's willful failure to follow an instruction, that the juror will not follow other instructions and is therefore unable to perform his or her duty as a juror." (Ledesma, supra , 39 Cal.4th at p. 738, 47 Cal.Rptr.3d 326, 140 P.3d 657.) But contrary to the Attorney's contention, Juror No. 2 did not violate the trial court's pretrial admonitions. Prior to the opening statements, the trial court instructed with the standard pre-trial instruction, CALCRIM No. 101. That instruction told the jurors: "During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone." In the mind of a layperson, a statement telling someone you are on jury duty but looking forward to it being over might not fall into the prohibition of talking about the case, the people in the case or a subject involved in the case. And unless a juror's conduct violates an express admonition, there is no misconduct. "A lay juror cannot be expected to conform to standards of behavior of which [they have] not been informed." (In re Hamilton (1999) 20 Cal.4th 273, 305, 305, 84 Cal.Rptr.2d 403, 975 P.2d 600, 20 Cal.4th 1083A, 305, 305.)
The conversation with Taxman was de minimus and did not establish good cause for his discharge under section 1089 based on an inability to perform his duty. (See Armstrong, supra , 1 Cal.5th at p. 452, 205 Cal.Rptr.3d 518, 376 P.3d 640 ["de minimis references" to juror reading a book or looking at a cell phone "one or two times" during deliberation insufficient to support a finding juror was refusing to deliberate]; People v. Stewart (2004) 33 Cal.4th 425, 509-511, 15 Cal.Rptr.3d 656, 93 P.3d 271 [Juror's misconduct was "trifling" and non-prejudicial when during break in penalty phase of death penalty trial, juror, while in the restroom, spoke to defendant's ex-girlfriend, telling her, "I know we're not suppose[d] to have any contact but I just wanted to tell you're a very nice looking lady"]; People v. Hardy (1992) 2 Cal.4th 86, 175, 5 Cal.Rptr.2d 796, 825 P.2d 781 [juror's unauthorized contact with prosecution police witness was improper, but was de minimis under the circumstances of the case]; People v. Salinas-Jacobo (2019) 33 Cal.App.5th 760, 779, 245 Cal.Rptr.3d 361 [even if the juror had brought up the issue of punishment during deliberations, there is insufficient evidence that any consideration of it by him was any more than de minimis, and was not a basis to discharge him for misconduct].)
In this regard, the circumstances here are reminiscent of an earlier case where the California Supreme Court discussed the demonstrable reality standard. In People v. Compton (1971) 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537, the trial court conducted a jury misconduct hearing concerning a statement an alternate juror made to his barber during the weekend. The barber testified that the alternate disclosed his connection with the trial and said that certain older women had been rejected as prospective jurors " ‘because they would be hard to keep an open mind on a case such as this and what the people that selected the jury didn't know, that he felt the same way,’ " and that " ‘he didn't like to be on a case like this because it was hard to keep an open mind.’ " The trial court never asked the alternate about his statement before discharging him. ( Id . at p. 59, 98 Cal.Rptr. 217, 490 P.2d 537.) Our high court concluded the statements were equivocal: "[T]hey could have signified that [the alternate] was incapable of ‘acting with entire impartiality’ [Citation], but they could also have meant only that he found the facts of the case distasteful and would be compelled to make a special effort to remain objective, although he was capable of doing so. Yet the trial court did not question the person most likely to know that meaning, [the alternate] himself." ( Id . at pp. 59-60, 98 Cal.Rptr. 217, 490 P.2d 537.) Regarding the requirement in section 1089 of "good cause" to find the juror is "unable to perform his or her duty," our high court explained: "inability must appear in the record as a demonstrable reality. Here the ambiguity in [the alternate's] remarks was never resolved by proof, and the court was not entitled to do so by presuming the worst . Such a presumption, however well motivated, does not furnish the ‘good cause’ required by the governing statutes." ( Id . at p. 60, 98 Cal.Rptr. 217, 490 P.2d 537, italics added.) Thus, the trial court erred in excusing the alternate.
Apparently believing it could not proceed without an alternate, the trial court in Compton declared a mistrial. (Compton, supra , 6 Cal.3d at p. 58, 98 Cal.Rptr. 217, 490 P.2d 537.) Apart from the error in discharging the alternate, our high court, as a secondary reason for its reversal, concluded that since the jury of 12 was still intact, the trial court could have proceeded without the alternate and there was no legal necessity to declare a mistrial. (Id . at pp. 60-61, 98 Cal.Rptr. 217, 490 P.2d 537.)
Here, while the trial court asked Juror No. 2 a series of questions, most of the questions were prefaced with "do you recall" as opposed to "did you say..." or "did you tell the person ..." And from his response that he did not recall making the statement the trial court had asked about, the court presumed the worst by discharging Juror No. 2, finding there were "questions about his truthfulness." This was error. We conclude the juror's inability to perform his duties does not appear in the record as a demonstrative reality. ( Armstrong, supra , 1 Cal.5th at p. 450, 205 Cal.Rptr.3d 518, 376 P.3d 640.)
4. Harmless Error
This brings us to the question of prejudice. Applying the standard in Watson, supra, 46 Cal.2d at page 836, 299 P.2d 243, this court has held that an abuse of discretion in discharging a juror under section 1089 "requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error." ( Bowers, supra, 87 Cal.App.4th at p. 735, 104 Cal.Rptr.2d 726.)
In People v. Abbott (1956) 47 Cal.2d 362, 303 P.2d 730 ( Abbott ), a seated juror was discharged before deliberations began because it came to light that he worked in the same office as the defendant's brother. Our high court, after holding the trial court did not abuse its discretion in discharging the juror under section 1089, also held "there is no showing [the defendant] was prejudiced." The court explained there was no prejudice because the defendant "was not entitled to be tried by a jury composed of any particular individuals," "[t]he juror who was substituted for [the discharged juror] was examined fully by both sides on voir dire , accepted as a qualified alternate and served as such from the start of the trial until seated as a regular juror," and "[t]here is no claim that he was unable to render a fair verdict." ( Id . at pp. 371-372, 303 P.2d 730.) By contrast, in People v. Hamilton (1963) 60 Cal.2d 105, 127, 32 Cal.Rptr. 4, 383 P.2d 412 ( Hamilton ), our high court held the trial court prejudicially abused its discretion in discharging a juror during the presentation of the penalty phase evidence of a capital trial after erroneously concluding the juror committed misconduct. On the question of prejudice, the court observed that its previous decisions in Abbott and People v. Howard (1930) 211 Cal. 322, 295 P. 333 "turned upon the fact that no prejudice had been shown." ( Hamilton , at pp. 126-127, 32 Cal.Rptr. 4, 383 P.2d 412.) In Abbott , there was no showing the discharged juror "would have been more favorable to one side or the other," and in Howard , "the discharged juror had expressed a prejudice against two defense witnesses" and therefore "substitution of an alternate in his place was favorable to the defense." ( Hamilton , at p. 127, 32 Cal.Rptr. 4, 383 P.2d 412.) But in Hamilton , the prosecution moved to discharge the juror in question "on the stated ground that she ‘had disclosed her opposition to a verdict imposing the death penalty.’ Thus, her disqualification could only be beneficial to the prosecution and prejudicial to the defense." ( Id . at p. 128, 32 Cal.Rptr. 4, 383 P.2d 412.) Our high court held: "This error alone could well be held to have been prejudicial and to require a retrial of the penalty issue. Certainly, when considered with the other errors ... the cumulative effect of such errors must be held to be prejudicial." ( Ibid . ) Thus, it is clear from these older cases, that our high court requires a showing of prejudice when a trial court erroneously discharges a sitting juror under section 1089.
Hamilton was overruled in part on another point in People v. Morse (1964) 60 Cal.2d 631, at pages 637-638 and footnote 2, 36 Cal.Rptr. 201, 388 P.2d 33, and disapproved on a different point in People v. Daniels (1991) 52 Cal.3d 815, at pages 864-866, 277 Cal.Rptr. 122, 802 P.2d 906.
Defendant relies on Cleveland, supra, 25 Cal.4th 466, 106 Cal.Rptr.2d 313, 21 P.3d 1225 and Armstrong, supra , 1 Cal.5th 432, 205 Cal.Rptr.3d 518, 376 P.3d 640, where our high court held the trial courts abused their discretion in discharging a juror during deliberations for refusing to deliberate because the record did not support such a conclusion as a demonstrable reality. ( Cleveland, at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225 ; Armstrong , at pp. 450-454, 205 Cal.Rptr.3d 518, 376 P.3d 640.) Citing Hamilton , without further analysis, the Cleveland court concluded the trial court's error in discharging the juror under section 1089 was prejudicial and required reversal of the judgment. ( Cleveland, at p. 486, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) Citing Cleveland , without further analysis, the Armstrong court concluded the error in that case was prejudicial and required reversal. ( Armstrong , at p. 454, 205 Cal.Rptr.3d 518, 376 P.3d 640.)
But as should be apparent from the Cleveland court's citation to Hamilton , our high court relied on Hamilton's discussion of prejudice in support of its conclusion the discharge of the juror was prejudicial. The fact that the Cleveland court did not specifically analyze prejudice does not imply a conclusion that prejudice need not be shown. To the contrary, the prejudice was obvious because, similar to Hamilton , the trial court in Cleveland discharged the only juror who disagreed with his fellow jurors regarding the defendant's guilt. As in Hamilton , his disqualification "could only be beneficial to the prosecution and prejudicial to the defense." ( Hamilton, supra , 60 Cal.2d at p. 128, 32 Cal.Rptr. 4, 383 P.2d 412 ; see also Bowers, supra , 87 Cal.App.4th at pp. 735-736, 104 Cal.Rptr.2d 726 [discharged juror "was the lone holdout juror who steadfastly held to his belief defendant was not guilty throughout the course of deliberations and until he was discharged"].) The same thing happened in Armstrong . The prejudice involving the discharge of the deliberating juror in that case was similarly obvious because the record disclosed the erroneously excused juror was leaning in defendant's favor. Accordingly, defendant's reliance on Cleveland and Armstrong is misplaced.
Moreover, neither Cleveland nor Armstrong overruled this court's holding in Bowers, supra, 87 Cal.App.4th at page 735, 104 Cal.Rptr.2d 726, applying the Watson standard to the erroneous discharge of seated jurors under section 1089. And neither case stated reversal is always required when the trial court erroneously discharges a juror under section 1089. Had our high court intended to hold that such an error is per se prejudicial, we are confident it would have expressly done so. It is well-established that cases involving per se prejudice involve structural errors. (People v. Singh (2015) 234 Cal.App.4th 1319, 1330, 184 Cal.Rptr.3d 790 (Singh ).) A structural error is a " ‘ "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." ’ " (People v. Mil (2012) 53 Cal.4th 400, 410, 135 Cal.Rptr.3d 339, 266 P.3d 1030.) Such errors " ‘deprive defendants of "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence." ’ " (Ibid . ) As this court has previously noted: "Under the California Supreme Court's approach, structural error exists only in a very limited class of cases (generally involving an impingement on the right to counsel or self-representation, bias on the part of the court or jury, a defective instruction on reasonable doubt, the denial of a public trial, and an erroneous denial of a Wheeler – Batson motion) in which the error has the effect of rendering the factfinding process unreliable, or causing the trial to be fundamentally unfair. [Citation.]" (Singh, at p. 1330, 184 Cal.Rptr.3d 790, citing Mil at p. 410, 135 Cal.Rptr.3d 339, 266 P.3d 1030.) Here, the erroneous discharge of the juror did not render the factfinding process unreliable; nor did it render defendant's trial fundamentally unfair.
Here, defendant has failed to demonstrate the discharge of Juror No. 2 was prejudicial under the Watson standard. Juror No. 2 was discharged before deliberations, and there is no indication he was leaning one way or the other on the question of defendant's guilt from statements he made during the presentation of the evidence as the juror did in Hamilton, supra , 60 Cal.2d at pages 123, 127-128, 32 Cal.Rptr. 4, 383 P.2d 412. Nor is there any other prejudice that can be gleaned from the record. And, as in Abbott , "[t]he juror who was substituted for [Juror No. 2] was examined fully by both sides on voir dire , accepted as a qualified alternate and served as such from the start of the trial until seated as a regular juror. There is no claim that he was unable to render a fair verdict." ( Abbott, supra , 47 Cal.2d at pp. 371-372, 303 P.2d 730 ; See also, People v. Tate (2010) 49 Cal.4th 635, 672, 112 Cal.Rptr.3d 156, 234 P.3d 428 [" ‘ "[T]he general rule [is] that an erroneous exclusion of a juror for cause provides no basis for overturning a judgment." ... Defendant has a right to jurors who are qualified and competent, not to any particular juror’ "].) As noted, defendant had a right to an impartial jury. That is what he got.
Applying the Watson standard as this court did in Bowers, supra , 87 Cal.App.4th at page 735, 104 Cal.Rptr.2d 726, we conclude the record here does not establish it is "reasonably probable that a result more favorable to defendant would have been reached but for the error" in discharging Juror No. 2.
See footnote *, ante .
DISPOSITION
We affirm the conviction but remand to allow the trial court to consider exercising its discretion under section 12022.53, subdivision (h) and section 1385 to strike the section 12022.53, subdivision (d) enhancement in the interest of justice and impose instead a lesser enhancement under subdivisions (b) or (c) of section 12022.53.
I concur:
HULL, Acting P. J.
HOCH, J., Dissenting.
See footnote *, ante .