Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD213736 Melinda J. Lasater, Judge.
HALLER, Acting P. J.
A jury found Omar Maldonado guilty of first degree murder and assault with a firearm. (Pen. Code, §§ 187, subd. (a), 245, subd. (a)(2).) The jury also found true enhancement allegations that Maldonado intentionally and personally discharged a firearm in causing the death, and he personally used a firearm in committing the assault. (Pen. Code, §§ 12022.53, subd. (d), 12022.5, subd. (a)(1).) The court sentenced Maldonado to 50 years to life, plus an additional seven years.
On appeal, Maldonado contends the court erred in dismissing a juror during deliberations, and the court failed to respond to a jury question. The contentions are without merit. The court had good cause to discharge the juror, and the court's response to the jury question was appropriate. Accordingly, we affirm.
FACTUAL SUMMARY
On February 15, 2000, Maldonado, who was 17 years old and a gang member, was a passenger in a vehicle when a rival gang member shot a BB gun into a back window of the car. Shortly after, Maldonado returned to the scene, pulled out a shotgun, and ran toward a group of people on the sidewalk. As the people ran away, Maldonado discharged one shot from the shotgun, hitting victim Eduardo Ayala with pellets in the hand and leg.
On the next evening, Maldonado and several other young people were in a bedroom listening to music, talking, and "smoking weed." Seventeen-year-old Leah Tadeo was also in the bedroom. Maldonado was angry because of an earlier incident when someone had crossed off his name from a gang roster list written on a bathroom mirror. At some point, Maldonado pointed an unloaded gun to the back of Tadeo's head. Tadeo told Maldonado to get the "fucking gun" away from her head. Maldonado's face turned red, as if he were humiliated. Maldonado then passed the gun to his friend, who put a bullet in the gun.
Shortly after, Maldonado grabbed the loaded gun back from his friend. With a "mad look" on his face, Maldonado immediately pointed the gun at the back of Tadeo's head. Tadeo again told Maldonado "Get that fucking gun out of my face." Seconds later, Maldonado fired the gun into Tadeo's head. Tadeo died shortly after. Maldonado quickly left through a window and fled to Mexico.
About seven years later, Mexican authorities apprehended Maldonado. San Diego police then took custody of Maldonado, and he was charged as an adult with crimes relating to the Ayala and Tadeo incidents.
At trial, Maldonado testified on his own behalf. With respect to Ayala, Maldonado admitted he shot the gun, but claimed he intended only to break the windows of a car on the street. Maldonado denied he was a gang member at that time.
With respect to the Tadeo shooting, Maldonado admitted shooting Tadeo in the back of her head, but said he did not think the gun was loaded and claimed the shooting was accidental.
On the Tadeo count, the jury was instructed on first and second degree murder, voluntary and involuntary manslaughter, and accidental homicide. On the third day of deliberations, the court dismissed a juror based on the court's finding that the individual could no longer fulfill the functions of a juror, and selected a replacement juror. The next afternoon, the jury returned verdicts of guilty on the first degree murder and assault charges.
DISCUSSION
I. Dismissal of Juror No. 1
Maldonado contends the court violated his due process rights by dismissing Juror No. 1 during deliberations.
A. Relevant Factual and Procedural Background
After the jury was seated and shortly before opening statements, on Wednesday October 22, the court and both counsel met with Juror No. 1, who had requested to speak to the court. Juror No. 1 initially asked whether he would be able to attend a parent/teacher conference at his son's school in about nine days. The court responded by assuring the juror that he would be able to attend the conference, and told the juror to remind the court about the appointment the next week. When the court asked whether that was the juror's only concern, the juror responded "I'm just having... a little personal issue about having to decide this man's fate." He said: "I've had a lot of stress divorcing my wife, raising my son on my own. This is more stress, you know, to have to make this kind of... serious decision. So I'm having trouble with it."
The court then asked counsel whether they wished to question Juror No. 1 or whether they would prefer to give him "a day or two" to see how he was doing. Defense counsel suggesting waiting a few days to see whether the juror felt he could handle being a juror in the case. The prosecutor said he wanted to briefly question the juror. During that questioning, Juror No. 1 repeatedly made clear he would prefer not to have to make a decision in the case, but agreed he thought he was capable of listening to the evidence and could make a fair decision if he was required to do so.
The prosecutor then said, "Unless [the juror] decides [he is unable to perform his duties] on a future day, I think we're okay." The court told the juror, "So let's give it a couple of days. [¶]... [¶]... See how you do. If I don't ask you on Friday, you remind me that we need to talk, okay?" After the juror exited, the court stated, "I think letting him try a couple of days will be the best approach, and then if he's not comfortable, you two will have to figure out how you want to handle it." Defense counsel indicated his agreement with this approach.
The following Monday, on October 27, at the end of the day, Juror No. 1 indicated he wanted to speak to the court and counsel. The following then occurred:
"The Court: Hi. Welcome back.... Are you feeling okay?
"Juror No. 1: Not really.
"The Court: Okay.... [¶]... So can you explain to me a little bit more about how you're feeling?
"Juror No. 1: It's just I feel a lot of pressure about making the decision, and I don't feel like I'm up to it.
"The Court: Do you think you would be unable to give the defendant a fair trial if you were to stay on the case because of the pressure?
"Juror No. 1: I don't know. It's hard to say.
"The Court: [Defense counsel], any questions?
"[Defense Counsel]: Do you feel that the emotions that you're feeling would affect the way you look at the evidence... when you're in with the rest of the jury and that you would be unable to come to a decision in the case?
"Juror No. 1: I think it would be hard to come to a decision.
"[Defense Counsel]: Well, unfortunately, there's a lot of things that are hard, but we're all asked to do certain things. Do you feel that you just could not come to that decision?
"Juror No. 1: I just feel a lot of stress about having to make the decision on the jury.
"[Defense Counsel]: I don't have any further questions.
[¶]... [¶]
"[Prosecutor]: Would that stress interfere with your ability to deliberate with the other jurors?
"[Juror No. 1]: No, I could deliberate with them. I'd have to make a decision at some point.
"[Prosecutor]: Do you think the pressure of deliberations would be too much for you personally, your mental makeup?
"[Juror No. 1]: I think it's just hard to determine his fate.
"[Prosecutor]: If it's just hard, that's one thing. If all of these things put together are going to make it beyond hard and are really going to make it to where you can't objectively apply the law and fairly, to everybody, do the job of a juror-that's what we're trying to figure out. Does that make sense?
"Juror No. 1: Yeah.
"[Prosecutor]: Do you think you could make a decision without letting emotion and sympathy get in the way?
"Juror No. 1: Yeah, I think I could.
"[Prosecutor]: Okay. Do you think you can make the decision fairly to both parties?
"Juror No. 1: Well, there's a lot of information to digest, and I wasn't at the scene. So I can't know for sure who is lying and who is telling the truth. That's where I'm struggling.
"[Prosecutor]: Are you willing to do the job of a juror which is to listen to all, as you have been, discuss with others, and to reach a decision. [¶] Are you willing to do that job?
"Juror No. 1: I think it's going to be hard for me.
"[Prosecutor]: I understand it's going to be hard. What I'm trying to figure out is if it's going to be so hard that the hard is going to interfere with you actually doing the job.
"Juror No. 1: I'm not sure.
"[Prosecutor]: Do you think it might?
[¶]... [¶]
"Juror No. 1: Hopefully, it would not. [¶]... [¶]... I think it's going to be a hard decision.
"[Prosecutor]: Are you losing sleep over this.
"Juror No. 1: I am stressing out about it somewhat.
"[Prosecutor]: Are you going to be able to make a decision without sympathies, passions, or anything outside of the trial getting in your way?
"[Juror No. 1]: I don't know. It's going to be a hard decision. I can't tell who is lying. It's hard to tell who is lying and who is telling the truth.
"[Prosecutor]: Are you going to be able to give us your independent individual opinion in the [jury] room?
"Juror No. 1: Yeah, I can try. Yes. Yeah, I can give my opinion. Yes.
"[Prosecutor]: Are you wanting to be excused? Are you wanting to not be a juror?
"Juror No. 1: I just, unfortunately, don't feel comfortable, you know being- making the decision here if it came down to me. That's where I'm struggling.
"[Prosecutor]: And if it came down to you, could you do that?
"Juror No. 1: If I was on the jury and I'd have to, then I'd have to. It's just a hard decision that I've never had to do before."
The court then asked Juror No. 1 whether he could be a fair and impartial juror. The juror responded that he "would definitely try to be fair and impartial." The court then asked: "Do you think you're going to be able to make a decision?" Juror No. 1 replied, "That's where I'm struggling." The court then inquired whether the pressure is going to create such a problem that the juror would not be able to be "fair and impartial, " and whether he could "handle the stress...." The juror responded, "Well, I wouldn't be bringing it up if it wasn't a problem for me." The juror also said "I would always try to be fair. I just... wish I didn't have to make the decision. That's where I'm at."
The court then asked the juror to step outside, and asked counsel for their positions. Defense counsel said, "I don't think there's sufficient cause to excuse him." The prosecutor stated: "It's clear that he's having a lot of difficulties. He keeps raising this day after day that he's not sure he's going to be able to do the job of a juror, and he even told us multiple times today that he's not sure he's going to be able to do the job of a juror or [that] he's going to be able to be fair. He says he'll try. I think we need to hear from him tomorrow when he thinks about this before we can reach a final conclusion on it."
The court responded, "Unless he's willing to say he can't be fair and his only problem is 'I don't want the pressure or stress of making this decision, ' he's going to stay. I don't see any other option unless... the two of you decide to stipulate to excusing him." The court then informed Juror No. 1 that he should return the next day, and he could ask to speak with the court again.
The next day, on October 28, at about 3:00 p.m., the jury began deliberations. About two hours later, the jury asked for a reread of a witness's testimony. The next day, on October 29, the jury asked for a readback of another witness's testimony (the individual who loaded the gun shortly before Maldonado shot Tadeo). The next day, on October 30 at about 10:00 a.m., the jury sent another note, asking for additional information about the terms "premeditation" and "deliberation."
Two hours later, possibly during a lunch break, Juror No. 1 called the court's phone number and reached the court clerk. The clerk reported the call to the trial judge on a written note, which stated: "The department phone number rang.... The calle[r] asked to speak to the judge. I responded that you were not available but I would take a message. I asked who was calling and what was the nature of the call.... The calle[r] said, 'This is juror #1 (on the Maldonado trial) and asked to speak to the judge.' I told him that you were not available and that if he wants to communicate with you, he should do so by writing a note. He wanted you to know that: He is too stressed to (for a) conviction on 1st degree. I told him I would give you the message but that he should submit the message in writing. I told him this message would be provided to the attorneys as well."
The court gave both counsel a copy of the note, and about two hours later, the court and counsel met to discuss Juror No. 1's most recent communication. At the outset, the court stated that Juror No. 1 had not put his concerns into writing, but both counsel agreed that the court should bring in the juror to discuss the issues raised by his call. Once he was brought into the courtroom, Juror No. 1 confirmed the accuracy of the clerk's note. The court then cautioned the juror not to discuss the deliberative process, and Juror No. 1 responded, "I did already say what count I was having trouble with." The following colloquy then occurred:
"The Court: Do you feel that you can continue?
"Juror No. 1: I think my emotions are clouding my judgment on that count.
"The Court: Okay.
"Juror No. 1: I couldn't sleep last night. Every time I started thinking about that count, for some reason my heart starts racing. For some reason I can't rationalize it to get through it.
"The Court: Do you feel that because of that you're not able to evaluate the evidence?
"Juror No. 1: Yeah.
"The Court: Do you believe that you can be a fair juror?
"Juror No. 1: I don't think I can. I can't come to a conclusion on it.
"The Court: Okay. I want you to be a little cautious here because if it's that you can't vote a particular way and you think you should, that's... one issue. [¶] But if it's just that you can't go along with the majority, you're not supposed to necessarily just go along with the majority just because the other jurors think a particular way. [¶] Am I clear in what the distinction is?
"Juror No. 1: Yeah, I don't think it's going with the majority. It's about me having an abiding conviction and being able to-I'm just very-I don't want to have to make this decision. I can't. I'm just too stressed out about it. About making it. I can't rationalize why. I'm just too stressed out about it. It's not rational. I'm trying to make it rational, but I can't.
"The Court: Counsel, do you wish to inquire at this point?
[¶]... [¶]
"[Defense Counsel]: The judge has paraphrased one of the instructions, which indicates that each and every juror has their own individual opinion on each count or each element of the count and should not be swayed from that decision without at least-or they shouldn't just hold onto that position without at least discussing the matter with the other jurors tending to either keep that decision or to change it to another decision. [¶] The thing that concerns me is we don't know whether this is something within you or whether it's something that's being pressured by other people that are in the jury room.
"Juror No. 1: I don't think I'm up to making the decision. That's where I'm at.
"The Court: Any decision or a particular decision?
"Juror No. 1: First degree.
"Defense Counsel: I asked the same question. Any decision either for or against or just making a decision period on first degree?
"Juror No. 1: Well, definitely making the decision for. You do have alternates, correct?
[¶]... [¶]
"The Court: Well, alternates are not a panacea and jurors are selected because of who they are. And once you were there, we didn't find out about your concern until after we had already let everybody else go. You were already a juror by the time we figured out or learned that there was an issue, and that's been the problem all along."
After defense counsel indicated he had no additional questions, the prosecutor began questioning the juror:
"[Prosecutor]: Do you believe that your inability to make a decision is based on your not wanting to, or you're not being convinced by the evidence one way or the other? Is it a lack of wanting to choose or a lack of being convinced?
"Juror No. 1: Wanting.
"[Prosecutor]: So it's an irrational not wanting?
"Juror No. 1: I can't sleep at night. I have to be able to live with it. I'm not seeming to be accepting it.
"[Prosecutor]: Okay. Do you believe that [you] at this point in time [are] able to make a decision without passion, prejudice, sympathy, or bias? Can you make a decision on all counts without letting those enter into your head?
"Juror No. 1: What do you mean bias?
"[Prosecutor]: For or against the defendant. Sympathy for or against the defendant. Prejudice for or against the defendant. Can you make the decision completely divorcing those issues and looking at the evidence only on all counts.
"Juror No. 1: I don't think I have prejudice in that kind of stuff, but I can't get myself to make the decision. I don't know what's wrong with me, but I have to be able to live with this, and I can't seem to accept it.
[¶]... [¶]
"[Prosecutor]: The two possibilities we have to figure out about what is affecting you is, is it that you just don't want to make the decision? You're not saying anything about a problem with the evidence or convincing. You just don't want to have to actually be the person to make a decision, and therefore you're not willing to? Or is it that you don't think that you have received enough evidence such that you can make the decision? [¶] Does that make sense in terms of differences?
"Juror No. 1: I don't want the decision on my shoulders. That's what I think what is going on.
"The Court: No matter which way you would vote you don't want a decision on your shoulders?
"Juror No. 1: Well
"The Court: Is that what you're saying? Is that just voting one way?
"Juror No. 1: Well, it's worst for voting for first degree, but I don't want to vote against and be wrong either. I want to be able to sleep at night.
"The Court: [Defense counsel], any questions?
"[Defense Counsel]: Well, so what you're saying is, is if you voted against first degree, you could probably live with that decision, but if you voted for first degree, you couldn't live with that decision? [¶] Is that a fair statement of the facts?
"Juror No. 1: Am I supposed to answer that?
"The Court: If you can answer that one. We're trying to figure out if it goes both directions or if it's just one direction.
"Juror No. 1: Well the problem is convicting on first degree. I think if it was not convicting, then I wouldn't have much of a problem.
"The Court: You would not have a problem if it was not guilty?
"Juror No. 1: As much of a problem. It's not rational. I don't want to lay awake every night worrying about this. I'm just not up to it for some reason.
"The Court: Is the pressure, though, in both directions no matter which way you vote you don't want to have to vote at all on this as opposed to it's okay to vote one way, but it's not okay to vote the other? Because I'm hearing different things from you. I'm having a hard time making sure I'm clear.
"Juror No. 1: Does it matter?
"The Court: Yes.
"Juror No. 1: I would have to say both.
"The Court: And you understand that you have the right and the responsibility to vote not guilty if you believe that the People haven't proved their case beyond a reasonable doubt?
[¶]... [¶]
"Juror No. 1: Yes."
When the questioning was completed, the court admonished the juror not to speak with the other jurors about his discussions with the court. Juror No. 1 responded, "I did say in the jury room that I'm having a lot of stress about the first-degree verdict." After the juror left the courtroom, the prosecutor stated: "I think all of us observed that during these interactions and continuing to today, [the juror's] body language is such that he does appear extremely nervous, fidgety, and I think stressed out is an accurate description of how he appears. It does not appear that this is malingering or a fake attempt to get off the jury."
The court agreed the juror "does appear stressed. The way he's putting his... head in his hands, his whole mannerism. I do believe that he's stressed over this. I do believe that it is both directions. [¶] In other words, I think he's more-a little bit more concerned about finding the defendant guilty of murder in the first degree. I also think he's concerned about finding him not guilty as he expressed because if he's wrong-he really seems to be very torn by the whole situation. [¶] So I am comfortable at this point based upon his answers that it is just not a one-way situation even though it may be a little bit stronger for guilty I don't think it is significantly stronger based upon his answers to a series of the questions. [¶] But now the next issue is what we do about it?"
The prosecutor responded: "Ultimately the jury... is under the protection of the Court, and you have to be satisfied yourself that removing a juror would be in the interest of justice and appropriate such that you're not removing a juror who just doesn't agree with the others or dealing with the majority pressure. [¶] But I do believe that the record that we have-that the statements he has made accompanied by his body language, accompanied by his repeated requests, and I think his most clearest answer to us-the one that he thought about and really didn't have to mumble about or hedge his answer was that he was feeling stressed in both directions. That he wasn't up to this decision. That he wasn't approaching it rationally. He couldn't explain why, but he just wasn't able to. I do think there's a basis to say that he's unable to deliberate and perform the job of a juror. I think it's appropriate at this time to substitute an alternate." The court then added: "I'm mindful also of the other things that he told us about what was going on in his life the last few years. He obviously has been through a lot. And so it's a little bit more understandable taken in that context as well."
After defense counsel stated that he objected to the removal of the juror, the court concluded there was good cause to discharge Juror No. 1 and substitute an alternate juror. The court stated: "I'm interpreting what he's saying, he can't vote either way. He's just too stressed to vote either way."
B. Analysis
A criminal defendant has a constitutional right to be tried by a fair and impartial jury. (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) Under certain circumstances, the discharge of a juror during trial may deprive a defendant of this right. However, the discharge of a juror for good cause "even after deliberations have commenced, ' "does not offend constitutional proscriptions." ' " (People v. Wilson (2008) 44 Cal.4th 758, 820-821.)
The good cause rule is embodied in Penal Code section 1089, which provides: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate...." (Italics added.) Under this rule, good cause to discharge a juror is established if the court finds a juror is "factually unable" to perform the duties of a juror. (Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 629 [interpreting former Penal Code section 1123].) This includes the situation when a juror becomes "emotionally unable to continue to serve as a juror due to illness or other circumstances." (People v. Cleveland (2001) 25 Cal.4th 466, 474.)
"The determination of good cause to excuse a juror rests within the sound discretion of the court...." (People v. Watson (2008) 43 Cal.4th 652, 696; see People v. Zamudio (2008) 43 Cal.4th 327, 349.) We must uphold the trial court's determination if the decision is supported by "substantial evidence" and the "juror's inability to perform... ' " ' "appear[s] in the record as a demonstrable reality." ' " ' " (People v. Watson, supra, 43 Cal.4th at p. 696.) Under the "substantial evidence" and "demonstrable reality" standards, a reviewing court is bound by the trial court's credibility findings if supported by evidence in the record, and may not reweigh the evidence. (See People v. Diaz (2002) 95 Cal.App.4th 695, 704-705.) However, the demonstrable reality standard "requires a 'stronger evidentiary showing than mere substantial evidence....' " (People v. Wilson, supra, 44 Cal.4th at p. 821.) "The demonstrable reality test '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 [disqualification] was established.' " (People v. Wilson (2008)43 Cal.4th 1, 26.) This " '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.' " (People v. Wilson, supra, 44 Cal.4th at p. 821.)
Applying these principles to the circumstances of this case, we conclude the trial court's decision to discharge Juror No. 1 was not an abuse of discretion because the juror's inability to consider the evidence and reach a decision appears in the record as a demonstrable reality.
From the outset of the trial, Juror No. 1 expressed doubts about being able to fulfill his duty as a juror, but he continued to say he would try to do so. The court and counsel carefully and extensively questioned the juror on several occasions, and the court made clear that it would not remove the juror unless the court was convinced the juror could not perform his duties to fairly consider the evidence and make a decision in the case. During the last contact, Juror No. 1 said, "I think my emotions are clouding my judgment on [ ] count [one]." He claimed that, for reasons he could not explain or rationalize, thinking about that charge made his heart race. The court asked, "Do you feel that because of that you're not able to evaluate the evidence?" Juror No. 1 replied "Yeah." When asked if he could be a fair juror, he replied, "I don't think I can. I can't come to a conclusion on it."
During this final questioning, the juror's responses showed he could no longer perform the duties of a juror because he was unwilling or unable to make a decision on the murder charge. At this time, the court and counsel were careful to seek information from Juror No. 1 as to whether he was having a problem reaching a conclusion based on the nature of the evidence, or whether he was having a problem reaching a conclusion because he simply had lost the ability to make a decision. After the juror's numerous statements (some of which were admittedly contradictory), the court was convinced-based on the juror's statements, inferences from these statements, and the juror's nervous and stressful body language-that Juror No. 1 had lost the ability to consider the evidence fairly and reach a conclusion. The record fully supports the court's conclusion.
Maldonado contends the court improperly found Juror No. 1 was unable to perform his duties merely because he "felt stressed and worried about making the wrong decision...." This contention is unsupported by the record.
Although the juror expressed anxiety about making a "wrong" decision and that he could not determine who was "telling the truth" and who was "lying, " the record does not show the court discharged the juror merely because of these concerns. To the contrary, the court expressly stated that "he's going to stay" on the jury if Juror No. 1's "only problem" is that he does not "want the pressure or stress of making this decision...." The court thus initially refused to discharge Juror No. 1 because it appeared that he would be capable of considering and evaluating the evidence in a fair and impartial manner, even though the juror was feeling "pressured" and "stressed." But by the third day of deliberations, the court found that Juror No. 1's emotions precluded him from the ability to deliberate or perform the other functions of a rational juror, including the ability to "vote either way."
Good cause exists to discharge a juror if the juror's emotional state impedes the juror's ability to fairly consider the evidence or deliberate with other jurors. (See People v. Cleveland, supra, 25 Cal.4th at p. 474; see, e.g., People v. Fudge (1994) 7 Cal.4th 1075, 1098-1100 [concluding "substantial evidence" supported trial court's finding of "good cause" to excuse juror after juror stated that "anxiety" pertaining to her job transition would detrimentally affect her ability to deliberate]; People v. Collins (1976) 17 Cal.3d 687, 696 [juror requested removal and "stated several times that she could not decide the case on the evidence and the law since she was involved emotionally more than intellectually"]; Mitchell v. Superior Court, supra, 155 Cal.App.3d at pp. 626, 628-629 [good cause to remove a juror based on the juror's statements that he was unable to concentrate on the evidence, "found [his] mind wandering" during the presentation of the evidence, and "was unable to take notes or listen to what was being said"].)
Maldonado also contends the court erred in discharging Juror No. 1 because this juror "likely" would have voted in favor of the defense, i.e., would have "found there to be a reasonable doubt in the prosecution's case."
A court may not discharge a juror based on the juror's doubts as to the sufficiency of the evidence to support a verdict, and may not discharge a juror because the juror disagrees with the remaining jurors or is using faulty logic. (See People v. Cleveland, supra, 25 Cal.4th at pp. 483-485.) However, the trial court did not remove Juror No. 1 for these reasons. The court noted that although the juror was having a problem voting for a first degree murder charge, the juror expressed having the same problem voting against the charge. Based on the totality of the juror's responses, the court made a specific factual finding that the juror was not necessarily leaning in one direction and had simply lost the ability to make a decision in the matter. There is evidence in the record supporting this conclusion. The court could reasonably conclude that Juror No. 1's references to the first degree murder count essentially reflected his broader problem that he was mentally and emotionally unable to consider the evidence to reach a conclusion on the charge.
Maldonado additionally challenges the discharge because Juror No. 1 did not specifically state unequivocally that he was unwilling to perform his duties in good faith. However, the court may rely on inferences from the juror's statements and the juror's demeanor to reach its conclusion as to good cause. (See People v. Zamudio, supra, 43 Cal.4th at pp. 349-350; People v. Diaz, supra, 95 Cal.App.4th at p. 704.)
Unlike our review of the written transcript, the trial court had the benefit of observing this juror first hand over a nine-day period, and thus had a meaningful basis to evaluate the juror's responses in context and determine the nature of the juror's emotional difficulties. The court had the opportunity to listen to the juror's tone of voice, view his body language and demeanor, and based on the totality of the circumstances to interpret the juror's statements to mean he simply could not perform the functions of a juror. The record makes clear the trial court understood the proper legal standard, and made a factual determination that discharge was appropriate because the juror was unable to perform the duties required of a juror. It is not our function to second guess this factual conclusion.
The court's finding that there was good cause to discharge Juror No. 1 is supported by substantial evidence and the court's stated reasons for the discharge appear in the record as a demonstrable reality.
II. Court Properly Responded to Jury's Question No. 5
A few hours before Juror No. 1 called the court clerk during deliberations, the jury submitted the following question (Question No. 5) to the court: "Are [ ] there any further instructions on the definition of premeditation and deliberation available? [¶] Or any help on how to legally interpret the words."
After discussing the question with counsel, the court decided to additionally instruct the jury on the portion of CALJIC No. 8.20 that defines the terms as a pinpoint instruction. Both counsel agreed with this response. The court and counsel then engaged in the extensive questioning of Juror No. 1, and the court decided that there was good cause to remove the juror.
The court then substituted an alternate juror, and instructed that the newly constituted jury should begin the deliberations anew. After the jury was excused, the court and both parties agreed that the previously discussed response to the Jury Question No. 5 would be sent to the jury. The court then addressed the clerk: "I'm going to print a signed copy now. Technology is amazing. That's the signed copy right there. That goes to the jury. [Counsel] have approved it."
Maldonado does not challenge the substance of the response, but argues the record does not show the written response was "ever actually provided to the new jury." However, absent evidence to the contrary, we are required to presume that the trial court properly fulfilled its official duty. (See Evid. Code, § 664; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836.) We are also required to presume the court clerk followed the court's instructions and gave the supplemental instruction to the jury. (See Fergus v. Songer (2007) 150 Cal.App.4th 552, 565.) Maldonado has not directed us to any evidence rebutting these presumptions. There is nothing in the record showing the trial court failed to respond to the question. For example, the jury never inquired about an answer and neither counsel objected on the basis that the instruction was not given to the jury.
Because we presume the jury was given the additional written instruction, there was no error. Moreover, even assuming the supplemental instruction was not transmitted to the jury, there is no basis on the record before us to find that the lack of this instruction had any effect on the outcome of the case.
DISPOSITION
Judgment affirmed.
WE CONCUR: McDONALD, J., IRION, J.