Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIF113562, Paul E. Zellerbach, Judge.
J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Quisteen S. Shum and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
The issues in this appeal arise out of (1) the trial court’s remarks to the jurors after they indicated that they were deadlocked and (2) the trial court’s subsequent discharge of one juror.
The facts of the underlying crimes are not particularly pertinent, so we summarize them only briefly. On June 24, 2003, around 9:00 p.m., victims Katie B. and Michelle R. were found shot to death in their home in Riverside. The bedrooms had been broken into; some watches and some loose change had been taken. Other residents of the house sold drugs. Defendant had been to the house earlier that evening, around 7:00 p.m., asking for drugs, but he had been told there were none there.
Michelle R.’s five-year-old daughter was an eyewitness to the shootings. She testified that the shooter was a Black man with braided hair (as was defendant). She also said that she had seen the same man in the house earlier that evening, when she had come home from a friend’s house. However, in a live lineup, she failed to identify defendant. Defendant admitted that he was at the house and that, while he was there, a five-year-old girl came home. Defendant’s acquaintance Eric Burton, Jr., told the police that, a few days before the shootings, he heard defendant say, “They keep money there. Let’s go rob them . . . .” On the day after the shootings, Burton saw defendant removing the braids from his hair. When Burton asked why, defendant said that he had been accused of killing two girls in Riverside.
Defendant was found guilty on two counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with multiple murder (Pen. Code, § 190.2, subd. (a)(3)) and burglary-murder (Pen. Code, § 190.2, subd. (a)(17)(G)) special circumstances. An enhancement for personally discharging a firearm and causing death (Pen. Code, § 12022.53, subd. (d)) was found true. As a result, he was sentenced to three consecutive life terms, including two without the possibility of parole.
II
DISCUSSION
Defendant contends that, after the jury indicated that it was deadlocked, the trial court erred in three separate (though cumulative) respects. We discuss these asserted errors in chronological order.
A. The Trial Court’s Response to the Jury’s Question Regarding the Consequences of a Deadlock.
1. Additional factual and procedural background .
On Tuesday, November 7, 2006, around 10:10 a.m., the jury began deliberating.
On Wednesday, November 8, at 3:00 p.m., the jury sent out a note asking: “In the event all 12 of us can not all agree on the same verdict, what is the next legal procedure[?]”
In the presence of counsel, the trial court indicated that it was going to give an instruction pursuant to People v. Moore (2002) 96 Cal.App.4th 1105. Over defense counsel’s objection, it instructed the jury:
“First of all, the last part of the note basically asks the question what is the next legal procedure assuming you are unable to arrive at a unanimous verdict. And my response to that is, basically, it doesn’t matter. You are not to concern yourselves with what is the next legal procedure. . . .
“You folks need to concentrate on this case and hopefully or potentially or possibly arriving at a verdict, if you can do so in this case. What happens thereafter is of no consequence or no significance and shouldn’t impact or affect your deliberations or your verdicts in any way. So that’s nothing you should concern yourself with.
“But having been involved in criminal trials for more years than I hate to count, both as an attorney and as a judge, it is not all that uncommon that jurors at some point indicate to the Court that there is a possibility they are unable to arrive at a unanimous verdict. That happens somewhat frequently in this day and age.
“You know, it’s difficult to get 12 people to agree on anything in this day and age, and here we bring in 12 people, basically, off the street who don’t even know each other and we put you in a room after you have heard all the evidence and say, ‘Okay. Come to a decision.’ That’s problematic and difficult just in the abstract. And then you add to it all the additional pressures that come with it being a murder case, and things of that nature, and it makes life difficult. And your job is difficult. And don’t get me wrong when I say it’s not.
“But I want you to appreciate and understand that it’s not all that uncommon that jurors at some point during deliberations indicate that they are having difficulty or problems arriving at a unanimous verdict. If that’s the way that it ends up, so be it. . . .
“But I am going to give you certain ideas or suggestions that you might want to consider. And I am going to ask you to continue with your deliberations — not today. After I go through these few ideas or suggestions with you this afternoon, I am going to send you home for the day and ask you to come back tomorrow morning and give it a fresh start after you have been away from it for a while. That seems to help me sometimes, just remove myself from it, think about something else, and come back maybe with some other ideas or thoughts the next day.
“But again, your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely upon the evidence presented and without regard to the consequences of your verdict, regardless of how long it takes.
“But it is also your duty to carefully consider, weigh, and evaluate all the evidence presented at the trial and to discuss your views with one another. Deliberations is not a situation where, basically, you fold your arms, sit back in your chair, you know, and say, ‘I am done. I have made up my mind. Talk to the hand.’ You know. I am not saying that’s what’s happening, but my point is that people disagree. And you all have the right to your own individual opinions and thoughts and ideas. But you are required by law to share those thoughts and ideas and opinions with each other.
“If two people are on opposing sides, okay, fine. ‘You tell me why you think your way, and I am required to tell you why I think my way.’ And you have to support those thoughts and beliefs and opinions based upon the evidence, based upon the facts.
“So if someone says, ‘Well, here is how I feel,’ or, ‘Here is what I think.’ You follow up with, ‘Okay, Why? What do you base that upon? Can you tell me some facts or evidence[?]’
“Don’t give me this, ‘Oh, it’s a gut feeling I have.’
“You know, because you need to evaluate all of the evidence and consider the evidence. And so if someone disagrees with you, that’s fine, everyone is entitled to their own individual opinion when they are deliberating. But you are required to share with each other why you feel that way or why you think that way, based upon the evidence and the law, the jury instructions that I have submitted to you.
“So I am going to ask you — those of you that are disagreeing — to speak out and say, ‘Okay. Here is why I feel or think that way. This is what I am basing it upon, this testimony or this piece of evidence, or this fact.’ And you need to share that.
“And what I am also going to suggest — and this sometimes helps — is try role reversal. You know, if you are strongly feeling one way — we used to do this in law school . . . .
“ . . . [A]s potential litigators, . . . they required us to try cases. But one week we would try one side, and the next week we would flip over and have to present the other side. And by doing that, it really makes you think and work through it.
“You know, in England, they have what they call solicitors. And they are the trial attorneys. And for a period of time they are prosecutors, and then they flip them over, and for another period of time they are defense attorneys, and then they flip back. And if you think about it, that’s pretty smart, you know, because then you learn both sides of the fence. You now, you are just not — you don’t have blinders on and just see one point of view. It makes you think outside the box.
“So you may want to try that. If someone feels strongly about one position then say, okay, try and defend the other position and think of ideas why we shouldn’t think that way. It’s creative thinking. So you might want to consider that.
“And you are all to consider each other’s views and ideas regardless, you know. You are all equal in that respect, entitled to the respect of each other with regard to whatever opinions or thoughts or beliefs you may hold.
“So again, you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine their views. You should not hesitate to change a view you once held if you were later on convinced that it is wrong, or to suggest to other jurors that they should possibly change their views if they might be now convinced that they are wrong.
“Fair and effective jury deliberations require a frank and forthright exchange of views. . . . [Y]ou just don’t sit there like a stump on a log and say, ‘I have made up my mind. That’s it. It’s a done deal.’ It’s not over. You need to talk about it and express why you feel that way or believe or think that way and relate it to the facts and the law that were presented to you during the course of this trial.
“And again, as I have previously instructed you, each of you must decide the case for yourself, and you should do so only after you have had this full and complete consideration of all the evidence and discussed it with your fellow jurors.
“It is your duty as jurors to deliberate with the goal or hope of arriving at a unanimous verdict, if you can do so. And again, if you cannot do so, that’s fine, too. And ‘we,’ meaning the attorneys and I, will deal with that issue when and if it comes. . . . And you are not to concern yourselves with that.
“Again, as trial jurors, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. And again, as I suggested, you might try using other methods. If you have some people who are leading the discussion, why don’t you ask some other people, maybe, to start leading the discussions or conversations who haven’t had a chance or an opportunity to speak up that much. Say, ‘Okay, fine. You lead us. You take charge or take command of the group.’
“You know, you have a foreperson and that’s all well and good but that doesn’t mean the foreperson controls everything. And again, I am not saying that’s happening. But I am just trying to suggest other alternative methods or means within which you can conduct your deliberations that might help and assist you.
“So again, maybe give it some thought tonight, as well as some of the suggestions I am making to you at this point in time.
“But again, as well as having different jurors lead the discussions for a period of time, you may try role reversal and see if anyone is willing to do that, or if that might benefit you or have any assistance to any of you, and argue the other side’s position, and they might see it differently or think about things differently. And again, at the very least, it’s going to help you better understand opponents or the opposing sides’ position if they are put in a position where they have to argue it now.
“I do want to stress that I am not dictating or instructing you as to how to conduct your deliberations. Ultimately, that decision is up to you folks to decide. I am just simply suggesting ideas or thoughts you may want to consider.
“And again, I want to ensure that all of you have a fair and equal opportunity to express his or her views of the evidence, and that you fairly understand the views of your fellow jurors, as well.
“I do want to emphasize and I don’t think that’s a problem with this jury, but I know some jurors, boy, they really get at it with one another. We put you in a small room and you are there for hours on end — but the integrity of a trial requires that jurors at all times during their deliberations conduct themselves, you know, in a professional and respectful manner. And again, I don’t have any doubt that’s not occurring. But I think it’s worth mentioning at this point in time.
“You should also keep in mind all the other instructions that I have given to you both on your duties and responsibilities as jurors, as well as on the law. And again, if there is anything that we can do to help or assist you with respect to any of the jury instructions — I know you have had some testimony read back — if you would like any other testimony read back.
“And I am going to throw out another idea. If there is — and again, I have no idea, because I am not in that jury deliberation room — but sometimes there is one sticking point or one issue that is the major focus or primary problem that jurors just can’t seem to come to an agreement on. And if there is such an issue or a problem in one specific area, what I have done in the past is, again, with the jury’s consent, with your basically asking us to, I have allowed the attorneys to argue a second time, one time each, solely as to that specific area or issue that you the jurors have identified is a major stumbling block or problem that you are having in your deliberations.
“And again, this is just another thought or idea that you might want to consider in your deliberations. If you feel or think it would benefit you or help you or assist you in some way to hear, you know, another — let’s say another ten or fifteen minutes of argument from each of the two attorneys on that sole subject or limited area, let us know that. And I will talk about it with the attorneys. And I am not guaranteeing you or assuring you that we are going to do that. I have done it in the past. But again, it’s something that you might want to consider when you come back tomorrow morning or think about tonight. And then come back tomorrow morning and share it with your fellow jurors, ‘You know, I thought about what the judge said, maybe if we did hear further argument on this issue, it might help me.’ But in any event, that’s something else to consider. [¶] . . . [¶]
“But again, these are all things that I am just suggesting to you. And again, ultimately, how you deliberate and how you approach your task as a trial juror is ultimately your decision or up to you. . . .
“It’s 4:00 now, so I am going to send you home for the day. Relax. You know, for some of you, if it helps, have a cocktail or soda or whatever the case might be. And we will see you here tomorrow morning at 9:00 a.m.”
Outside the presence of the jury, defense counsel objected again and moved for a mistrial. The trial court denied the motion.
2. Analysis.
“The court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement. [Citations.]” (People v. Pride (1992) 3 Cal.4th 195, 265, fn. omitted, quoting Pen. Code, § 1140.) “‘The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.” [Citation.]’ [Citation.] The question of coercion is necessarily dependent on the facts and circumstances of each case. [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 195-196, quoting People v. Breaux (1991) 1 Cal.4th 281, 319, quoting People v. Carter (1968) 68 Cal.2d 810, 817.)
“Any claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case. [Citations.]” (People v. Pride, supra, 3 Cal.4th at p. 265.) We ask “whether the instructions tend to impose such pressure on jurors to reach a verdict that we are uncertain of the accuracy and integrity of the jury’s stated conclusion. This determination . . . is perhaps best characterized as requiring a generalized assessment of the potential effect of a given instruction on the fact finding process, rather than as an attempted inquiry into the actual volitional quality of a particular jury verdict.” (People v. Gainer (1977) 19 Cal.3d 835, 850.)
Defendant claims the trial court’s instruction was coercive in three respects: First, it suggested that the jurors use reverse role playing; second, it failed to tell them they should not do “violence” to their individual judgment; and third, it told them that it should be their “goal” to reach a verdict, “regardless of how long it takes.”
The reverse role-playing suggestion derives, as the trial court indicated, from People v. Moore, supra, 96 Cal.App.4th 1105. There, the trial court had instructed a deadlocked jury, among other things, “‘[Y]ou may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side’s position and vice versa. This might enable you to better understand the other’s positions.’” (Id. at p. 1119.) It had also instructed, “‘[E]ach of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.” (Id. at pp. 1118-1119.) The appellate court held that the instruction was not coercive and added, “[T]he trial judge . . . should be commended for fashioning such an excellent instruction.” (Id. at p. 1122.)
Subsequently, in People v. Whaley (2007) 152 Cal.App.4th 968, a majority of the court specifically held that an instruction suggesting reverse role playing was not improper, in part because defense counsel had not objected to the instruction (id. at p. 983), but also for three other reasons:
“First, the trial court’s suggestion that the jurors consider a role playing method of deliberation applied to both the minority and majority jurors . . . . [Citation.]
“Second, there was nothing in the supplemental instruction that was designed to coerce a verdict or unduly increased ‘“the inevitable pressure to agree felt by minority jurors.” [Citation.]’ [Citation.] To the contrary, the trial court emphasized the jurors’ duty to use their independent judgment by urging the jurors to ‘decide the case for yourself . . . only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict, if you can do so without violence to your individual judgment.’
“Third, the trial court did not order the jurors to utilize role playing as a method of deliberation. The court made clear in the supplemental instruction that it was merely suggesting that the jurors consider role playing as one of several possible methods of deliberation . . . .” (People v. Whaley, supra, 152 Cal.App.4th at p. 983, quoting People v. Gainer, supra, 19 Cal.3d at p. 850.)
Defendant relies, however, on the separate concurring opinion of Justice McAdams in Whaley. Although he agreed that reversal was not required (People v. Whaley, supra, 152 Cal.App.4th at p. 986 [conc. opn. of McAdams, J.]), he commented: “ . . . I am troubled by the statement to the jurors that they should consider using ‘reverse role playing’ as a method of deliberation, especially in a case such as this one where the trial court was aware at the time of the instruction that the numerical breakdown of the deadlocked jury was 11 to one. Furthermore, I have concerns about language found in the early and later portions of the instruction that creates the impression that the court has the expectation that the jurors should come to a verdict, the statement shortly thereafter that they have a ‘goal as jurors’ to reach a verdict if they are able to do so ‘regardless of how long it takes,’ and the concluding charge that the panel is ‘ordered to continue your deliberations.’ These remarks are a far cry from the restrained, neutral tone of CALCRIM No. 3550. [Citation.]
“I disagree with the view that such statements cannot be found to be unduly coercive because they are mere ‘suggestions’ made by the court. These comments are more than friendly and helpful advice. The trial judge is seen by the jury as the central courtroom authority figure, the unbiased source of the law and the same person who previously instructed them . . . that ‘[y]ou must follow the law as I explain it to you, even if you disagree with it.’ Thus the need for utmost caution.” (People v. Whaley, supra, 152 Cal.App.4th at p. 985 [conc. opn. of McAdams, J.])
The opinion of the Whaley majority is precedential; Justice McAdams’s concurring opinion is not, and we decline to follow it. We see nothing coercive about suggesting reverse role playing. Indeed, Justice McAdams did not really explain why it would be. He did say he was concerned that the jury might regard it as more than a mere suggestion. But even if so, reverse role playing simply helps each side understand the views of the other side; it does not tend to coerce any particular verdict. Moreover, in this case, the trial court repeatedly made it clear that it was not requiring the jury to engage in reverse role playing. For example, it stated: “I do want to stress that I am not dictating or instructing you as to how to conduct your deliberations. Ultimately, that decision is up to you folks . . . .” “[A]s trial jurors, you have the absolute discretion to conduct your deliberations in any way you deem appropriate.”
Defendant points out that here, unlike in Moore and Whaley, the trial court did not instruct the jury that “‘[i]t is your duty as jurors to deliberate with the goal of arriving at a verdict, if you can do so without violence to your individual judgment.’” (People v. Whaley, supra, 152 Cal.App.4th at p. 983, italics added; see also People v. Moore, supra, 96 Cal.App.4th at p. 1119.) Nevertheless, it did make much the same point in other words. For example, it stated: “[P]eople disagree. And you all have the right to your own individual opinions and thoughts and ideas.” “[I]f someone disagrees with you, that’s fine, everyone is entitled to their own individual opinion when they are deliberating.” “[A]s I have previously instructed you, each of you must decide the case for yourself . . . .” “It is your duty as jurors to deliberate with the goal or hope of arriving at a unanimous verdict, if you can do so, and again, if you cannot do so, that’s fine, too.” As a result, the trial court’s remarks, taken as a whole, did not tend to coerce the minority jurors to surrender their individual judgment.
Finally, further echoing Justice McAdams, defendant takes exception to the trial court’s instruction that “your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely on the evidence presented and without regard to the consequences of your verdict, regardless of how long it takes.” (Italics added.) The same language was approved by Moore and by the majority in Whaley. We find no fault with it. As already noted, the trial court also told the jury, if it could not reach a verdict, “that’s fine, too.”
We therefore conclude that the trial court’s remarks at this point were not unduly coercive.
B. The Trial Court’s Instruction to the Deadlocked Jury.
1. Additional factual and procedural background.
The next day, Thursday, November 9, at 9:00 a.m., the jurors resumed deliberations. Friday, November 10, was a holiday; thus, if the jurors did not reach a verdict that Thursday, they had to continue deliberating on Monday.
Around 9:45 a.m., the jury sent out the following note: “We . . . can not reach a unanimous decision. We have followed all the instructions, have reviewed the facts and testimony, have been respectful[] towards each other and believe that we can not reach a unanimous verdict.”
About 11:15 a.m., in the presence of counsel, the trial court addressed the jury as follows:
“ . . . I went over a lot of things with you yesterday afternoon as far as talking to you about your deliberative process and suggesting — giving you some suggestions and ideas. And I got this note within an hour — less than an hour of you folks coming in this morning.
“You know, that really doesn’t tell me that you folks are giving it your best effort or really putting forth the time and the energy and the effort to try to come to a unanimous verdict.
“I mean, I spent a lot of time yesterday talking to you folks and giving you suggestions and ideas. Then I get a note in less than an hour this morning that you have done all of those things. Well, there wasn’t enough time for you folks to really, honestly, truthfully devote your energies and your time and your thoughtfulness and your exchange of conversation and ideas.
“Let me ask you, (Juror No. 10), how many ballots has the jury taken during the entire course of the deliberations?
“JUROR No. 10: Four.
“THE COURT: Has there been any movement?
“JUROR No. 10: Yes.
“THE COURT: Okay. Well, that’s a good sign. . . . [I]t doesn’t make any difference which way — but the fact there has been some movement indicates to me that there are some people that are willing to listen and evaluate other people’s ideas and thoughts and possibly change their mind and keep an open opinion.
“Let me ask you this: I know I have time-qualified you folks through today. And if there is any of you that feel a time pressure or that that is having some impact or effect upon your deliberations in any way, we have alternates. And if need be, if time is the problem or you feel, ‘God, I have got to come to a decision, because I have got to get out of here; I have got all these pressures, or all these other things I need to be doing.’ Obviously, that’s an inappropriate consideration, but I know we have only time-qualified you through today.
“And I don’t know how long deliberations are going to take. I cannot tell you that at this point in time. But if there is any of you that feel you are under a time pressure or consequence, and it’s detrimentally affecting your ability to deliberate with an open mind, then please let (Juror No. 10) know, because we still have alternates that I can seat and have them participate in the deliberations, if you feel that pressure.
“But only if that pressure, again, is affecting your ability to honestly and openly and freely deliberate. We are all feeling time pressure. I know all of you folks have other things to do, believe me.
“But I want you to discuss that. And if there is anyone who feels that they just cannot continue to deliberate any more because of the time problems, because we only time-qualified you through today, then I would ask (Juror No. 10), you let me know. And we will . . . decide how to proceed at that point in time with respect to that juror, or those jurors who feel they can no longer continue to deliberate simply based upon the length of time.
“Because I appreciate and understand the fact that we only time-qualified you through today. And the deliberations may go into next week. You know, I just don’t know at this point. But that’s a factor that everyone needs to think about and consider.
“Obviously, everyone knows and appreciates and understands, this is a serious case. And we hope that we can come to a resolution; if not, again, so be it.
“But after having received this note after less than an hour of continued deliberations this morning, I was kind of disappointed, to say the least.
“So I am going to have you folks go back and, again, talk about whether time is an issue with any of you. And continue to deliberate and see if you can get any more movement in either direction to arrive at a unanimous verdict.”
2. Analysis.
Defendant argues that the trial court’s statements contradicted its statements the previous day that “how you deliberate and how you approach your task as a trial juror is . . . up to you.” That is not how we read them. The trial court was not telling the jurors that they had to follow the trial court’s specific suggestions with respect to reverse role playing, having someone other than the foreman lead the discussion, or reopening closing argument. On the previous day, it had also admonished them, more generally, “to reexamine your own views or to request your fellow jurors to reexamine their views,” to be forthcoming with their opinions, and to relate their opinions to the supporting evidence. Thus, it was simply telling them that they had to do something, and that less than an hour was not enough time for them to have done anything. It reasonably concluded, “[T]hat really doesn’t tell me that you folks are giving it your best effort or really putting forth the time and the energy and the effort to try and come to a unanimous verdict.” It was entitled to “remind[] the jurors of their duty to attempt to reach an accommodation.” (People v. Moore, supra, 96 Cal.App.4th at p. 1121.) It could also properly “advis[e] the jury that it had not deliberated very long.” (People v. Gill (1997) 60 Cal.App.4th 743, 748.)
Defendant singles out the trial court’s comment: “ . . . I spent a lot of time yesterday talking to you folks and giving you suggestions and ideas. Then I get a note in less than an hour this morning that you have done all of those things.” (Italics added.) In the note, however, the jury did not claim to have engaged in reverse role playing or to have followed any of the court’s other specific suggestions. Thus, “all of those things” merely referred to the overall theme of making a good-faith effort to arrive, if possible, at a unanimous verdict. We see nothing in the trial court’s remarks that would make us uncertain of the integrity of the jury’s ultimate conclusion.
Defendant also complains about the trial court’s comment that “the fact that there has been some movement indicates to me that there are some people that are willing to listen and evaluate other people’s ideas and thoughts and possibly change their mind and keep an open opinion.” Defendant argues, “The subtext of this comment was that those who would not change their minds were doing something wrong . . . .”
The trial court was forbidden to give a “discriminatory admonition directed to minority jurors to rethink their position in light of the majority’s views.” (People v. Gainer, supra, 19 Cal.3d at p. 845; see also id. at pp. 847-852.) However, it could properly give a nondiscriminatory admonition to each side to rethink its position in light of the other side’s views. (People v. Whaley, supra, 152 Cal.App.4th at pp. 982-983.) Moreover, at this point, the trial court was not merely allowed, but affirmatively required, to determine whether there was a “reasonable probability” that the jury could still come to a verdict. (Pen. Code, § 1140.) Thus, it could properly consider whether the jurors had become entrenched in their positions.
Finally, defendant argues that, by raising the subject of time pressures, the court “introduc[ed] . . . irrelevant considerations into the jury’s deliberations [in] violat[ion of] fundamental principles of due process.” He relies on case authority “restricting the foundation for the jury’s decision to the evidence and arguments presented at trial.” (People v. Gainer, supra, 19 Cal.3d at p. 848.) The trial court, however, did not tell the jurors to base their actual verdict on whether they were or were not feeling time pressure. Quite the contrary — it specifically told them: “[I]f . . . you feel, ‘God, I have got to come to a decision, because I have got to get out of here . . .,’ [o]bviously, that’s an inappropriate consideration . . . .”
The trial court was appropriately aware of the fact that the jurors were reaching the end of the period for which they had been time-qualified. It was not mere speculation to suppose that they might be declaring themselves deadlocked prematurely, just to avoid having to continue to serve into the following week. As part of its duty to determine whether there was a “reasonable probability” that the jury could still come to a verdict, the trial court had a responsibility to ascertain, if possible, whether the jury was in a kind of rush from judgment.
Defendant views the trial court’s comments as coercing the jurors to get to a unanimous verdict by, in turn, coercing the holdout juror(s) to ask to be excused. The trial court, however, cautioned that “[w]e are all feeling time pressure” and that a juror should ask to be excused “only if that pressure . . . is affecting your ability to honestly and openly and freely deliberate.” Moreover, its remarks were not necessarily directed at minority jurors. A member of the majority could also have been failing or refusing to deliberate to create a deadlock in order to avoid serving into the next week. If time pressure was not, in fact, preventing any of the jurors from deliberating, then nothing in the trial court’s remarks would have led any of the jurors to claim that it was.
We therefore conclude that the trial court’s remarks at this point — even when taken together with its remarks the previous day — were not unduly coercive.
C. The Trial Court’s Discharge of Juror No. 2.
1. Additional factual and procedural background.
Around noon that day, Juror No. 2 sent out the following note: “I have time issues and pressures that are [a]ffecting my ability to deliberate further.”
Around 2:00 p.m., the trial court had Juror No. 2 brought in. It asked:
“THE COURT: [¶] . . . [¶] All right. Without getting into the nature of the time pressures or issues, do you think that those issues or pressures are going to affect you to such an extent that you cannot continue to deliberate in this case?
“JUROR NO. 2: I do, Your Honor.
“THE COURT: All right. And again, this has nothing to do with deliberations at this point in time, but it’s simply an issue relating to your ability to continue on possibly past today into next week to continue to deliberate?
“JUROR NO. 2: Yes, sir.”
After an unreported sidebar conference with both counsel, the trial court excused Juror No. 2.
Defense counsel then stated that, during the sidebar, he had objected to excusing Juror No. 2. He added: “I feel that, as I explained to the Court at sidebar, . . . it is too early in the day, it’s only 2:00 p.m. There is still two and a half hours of the Court’s time left for them to deliberate.
“And I felt that the Court should allow the original 12 jurors to remain deliberating, at least until the end of business today. And I was objecting to releasing (Juror No. 2) prior to that time as being premature.”
The trial court responded: “[W]hen my clerk gave me this most recent note from Juror No. 2 right before the noon hour, . . . we randomly selected Alternate No. 2 . . . as being the next one who is to be seated. And I had my clerk call her, and have her arrive at court. It’s my understanding she is here and waiting outside.
“ . . . [M]y concern is that after today, we are beyond our time estimate with all the jurors. And we only have one alternate remaining.
“And you are right, it’s 2:00 now. They could continue. . . .
“But nonetheless, I have to bring all the jury back in now. I have to seat the alternate. I have to readmonish them . . . . And they have to . . . begin deliberations all over again from the beginning.
“And I think since we are closely approaching our time deadline at the end of the day today, . . . time is of the essence. . . .
“And I have a concern that we are going to be losing other possible jurors, as well, the further we get past today. And I have a very big concern about that. So I did decide to excuse her at this point in time.”
The trial court then seated Alternate No. 2. At 2:10 p.m., the jury retired to deliberate. At 4:10 p.m., the jurors went home.
On Monday, November 13, at 9:00 a.m., the jury resumed deliberations. At 10:11 a.m., it reported that it had reached a verdict. However, it had not actually reached a verdict on the firearm use allegations; hence, the trial court required it to deliberate further. At 12:00 noon, the jury returned a verdict.
2. Analysis.
The trial court can discharge a juror who is “unable to perform his or her duty . . . .” (Pen. Code, § 1089.)
“[A] juror’s disqualification must appear on the record as a ‘“‘“demonstrable reality.”’”’ [Citations.]” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, quoting People v. Cleveland (2001) 25 Cal.4th 466, 474, quoting People v. Marshall (1996) 13 Cal.4th 799, 843, quoting People v. Johnson (1993) 6 Cal.4th 1, 21, quoting People v. Compton (1971) 6 Cal.3d 55, 60.) “The demonstrable reality test entails a more comprehensive and less deferential review [than the substantial evidence test]. 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] was 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.” (People v. Barnwell, supra, 41 Cal.4th at pp. 1052-1053.)
“The decision to discharge a juror and substitute an alternate under Penal Code section 1089 rests within the discretion of the trial court. [Citations.] We review such a decision for abuse of discretion. [Citation.]” (People v. Smith (2005) 35 Cal.4th 334, 348-349.)
Preliminarily, defense counsel forfeited defendant’s present contention by failing to raise it in the trial court. (People v. Fudge (1994) 7 Cal.4th 1075, 1100-1101.) While he did object, he did so solely on the ground that the trial court should have kept Juror No. 2 until the end of the day. He did not assert, as defendant does now, that the trial court had failed to make a sufficient inquiry or had failed to develop good cause. To the contrary, by asking the trial court to keep Juror No. 2 until the end of the day, he implicitly conceded that there was good cause to excuse her after that point.
Separately and alternatively, we reject defendant’s contention on the merits. The juror indicated in the original note that time pressures were affecting his or her ability to deliberate. In response to the trial court’s questions, the juror specifically stated that, as a result of those time pressures, he or she could not continue to deliberate. This was a sufficient showing of good cause. (Cf. People v. Fudge, supra, 7 Cal.4th at pp. 1099-1100 [good cause existed where juror said her anxiety over completing the paperwork for leaving her existing job would affect her ability to deliberate].) “[B]oth trial-related and non-trial-related stress can provide good cause for discharging a juror. [Citations.]” (People v. Diaz (2002) 95 Cal.App.4th 695, 703; see also cases cited therein.)
Defendant argues that the trial court should have inquired further into the nature and validity of Juror No. 2’s claimed “time issues . . . .” He suggests that they may have been either “entirely frivolous or easily accommodated . . . .” If this was a concern, however, defense counsel was free to try to prove it by cross-examining Juror No. 2. Because he did not, our record contains sufficient evidence that Juror No. 2 could not continue to deliberate, and no contrary evidence. We are not free to second-guess the trial court’s determination that Juror No. 2’s testimony was credible.
We also note that a transcript of the voir dire has not been included in the record on appeal. (See Cal. Rules of Court, rules 8.320(c)(3) [voir dire not part of normal record], 8.324(b)(2)(A) [appellant may request that voir dire be included in reporter’s transcript.].) For all we know, Juror No. 2 made it clear during voir dire that she could not serve beyond a certain point and perhaps even explained why. That would certainly explain why defense counsel did not object further.
Defendant relies on People v. Delamora (1996) 48 Cal.App.4th 1850, but we find it inapt. In Delamora, during deliberations, the time that two jurors’ employers would pay them for jury duty ran out. (Id. at pp. 1852-1854.) They asked the trial court to help them get one more day of compensated time off. The trial court declined to do so, because it had already promised their employers that the jurors would be done that day; it excused both jurors instead. (Id. at p. 1854.)
The appellate court held that this was error, because the jurors’ inability to serve did not appear in the record as a demonstrable reality. (People v. Delamora, supra, 48 Cal.App.4th at pp. 1855-1856.) It explained: “Although a trial court does not abuse its discretion when it discharges a juror because of problems related to the juror’s employment, the employment problem must be real and not imagined.” (Id. at p. 1855.) “[The two jurors] were not unable to perform their duties. They did not ask to be excused. The most that can be said is that they asked the trial court to call their employers to request an additional day’s compensation, but there is nothing in the record (either during voir dire or during deliberations) to suggest that either of them was unwilling or unable to continue if they had to serve another day or two without pay.” (Id. at p. 1855.) “[T]he trial court’s determination that good cause exists to discharge a juror must be supported by substantial evidence [citation] and where, as here, there is no evidence at all to show good cause (because no inquiry of any kind was made), the procedure used was by definition inadequate. [Citations.]” (Delamora, at p. 1856.)
The Supreme Court later held that the applicable standard of review is the demonstrable reality standard, not the substantial evidence standard, thus implicitly overruling Delamora on this particular point. (People v. Barnwell, supra, 41 Cal.4th at pp. 1052-1053.)
Here, by contrast, Juror No. 2 did ask to be excused and did affirm that she would be unable to deliberate. (See People v. Diaz, supra, 95 Cal.App.4th at p. 704 [“Delamora is inapposite because [the juror] was not discharged until after the trial court questioned her”].) Accordingly, there was sufficient evidence to show the juror’s inability to serve as a demonstrable reality. The trial court was not required to conduct any further inquiry on its own.
We therefore conclude that the trial court did not err by discharging Juror No. 2.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.