Opinion
G054006
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN RENDON and KEVIN JESSE SEVILLA, Defendants and Appellants.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Adrian Rendon. Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Jesse Sevilla. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CF1604) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed and remanded with directions. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Adrian Rendon. Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Jesse Sevilla. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendants Adrian Rendon and Kevin Jesse Sevilla were convicted of conspiracy to commit murder, attempted murder, and carjacking. On appeal, they raise three issues. As explained in detail, post, we affirm the judgments of conviction, but remand the matter for evidentiary proceedings relevant to future youth offender parole hearings.
First, Rendon argues that the trial court prejudicially erred by instructing the jury with CALCRIM No. 301, claiming this instruction told the jury that the entirety of Rendon's testimony required corroboration. We disagree. The language of CALCRIM No. 301, particularly when read along with CALCRIM Nos. 334 and 335 which were also given to the jury, made clear that Rendon's testimony tending to implicate Sevilla required corroboration. Nothing in the jury instructions told the jury that Rendon's self-exculpatory testimony required corroboration.
Second, during deliberations, the trial court discharged a juror. Rendon and Sevilla argue that the court erred in discharging the juror and impermissibly intruded on the jury's deliberations. Again, we disagree. The court was required to investigate after the jury foreperson twice advised the court that one of the jurors was unable to deliberate due to problems with recall and focus. The court did not err in discharging the juror and the court undertook its investigation in a reasonable manner.
Finally, Rendon and Sevilla request the opportunity to submit evidence to the trial court that could be used at an eventual youth offender parole hearing. (Pen. Code, §§ 1204, 3051, 4801; Cal. Rules of Court, rule 4.437.) (All further statutory references are to the Penal Code.) Because Rendon and Sevilla fell within the reach of section 3051, subdivision (b), they are entitled to make a record for their eventual parole hearings. Therefore, we remand the matter to the trial court for the limited purpose of presenting evidence relevant to a youth offender parole hearing.
FACTUAL BACKGROUND
Sevilla did not testify at the trial. Rendon testified in his own defense; his testimony is set forth separately, post, under the heading "Defense Testimony." The testimony set forth under the heading "Prosecution's Case-in-Chief" comes primarily from Sergio Sotelo (a codefendant who pled guilty and testified against Sevilla and Rendon), the victim, and the victim's wife.
PROSECUTION'S CASE-IN-CHIEF
Asael Coto Alvarado ran a prostitution ring out of a motel at the northeast corner of Bristol Street and Segerstrom Avenue in the city of Santa Ana. Sergio Sotelo worked for Alvarado by driving around looking for police activity to alert Alvarado. José Gomez lived in a section of the motel that was reserved for long-term residents. Alvarado believed that Gomez had "keyed" Alvarado's girlfriend's car and that Gomez was interfering with Alvarado's prostitution business by calling the police.
Alvarado, Sotelo, and Angel Pineda met to formulate a plan to carjack Gomez, kidnap him, take him to a remote area, and kill him. Pineda would be the shooter, and Sotelo was to serve as the lookout. Alvarado agreed to pay Sotelo and Pineda. Alvarado pointed out Gomez's car to them.
Sotelo told his cousin, Sevilla, he could make some money if he helped Pineda kill Gomez; Sevilla agreed to participate. On October 21, 2011, Sotelo picked Sevilla up in Alvarado's vehicle. Sotelo told Sevilla to carjack Gomez and to shoot and kill him if he had a chance. Sotelo and Sevilla met Alvarado at a restaurant where Alvarado placed a gun in his car, which Sotelo was driving. Sotelo and Sevilla then parked Alvarado's car in the parking lot of a pancake house on the southeast corner of Bristol and Segerstrom, from which they could see the motel parking lot, to wait for Gomez.
Alvarado sent Sotelo a text message that Rendon would be joining them. When Rendon arrived, Sotelo and Sevilla, carrying the gun, got out of Alvarado's car and into Rendon's car. The three discussed what was going to happen. Sotelo said that as soon as Gomez arrived, Sevilla, Rendon, and Pineda would approach the motel parking lot, drive Gomez in his car to a secluded area, and kill him. Sotelo would follow in Alvarado's car and drive the others back. Pineda, however, never showed up.
About four hours after Sotelo, Sevilla, and Rendon arrived at the pancake house parking lot, Gomez returned from dinner with his wife and children. The family planned to go shopping. Mrs. Gomez and the children went to their room to get jackets while Gomez remained in his car.
Sotelo got out of Rendon's car and got back into Alvarado's car. Rendon drove himself and Sevilla to a gas station next door to the motel in his own car, and he and Sevilla ran up to Gomez's car. Sevilla pointed a gun at Gomez through the open car window and told him to be quiet. Sevilla reached inside the car, opened the car door, and told Gomez to get out.
Rendon took the keys from Gomez's hands and got into the driver's seat. Sevilla told Gomez to get into the passenger seat, but Gomez refused. When Gomez continued to refuse to get in the car, Sevilla asked Rendon what he should do; Rendon replied, "just cap him." Sevilla shot Gomez in the head, then jumped in Gomez's car as Rendon drove it toward the gas station.
As Mrs. Gomez was walking back to the car from her room, she heard a gunshot, then saw Gomez on the ground. After asking Gomez if he was okay, Mrs. Gomez ran after their car, which was heading toward the gas station. She saw Sevilla on foot; he was saying "I shot, I shot" before he ran across the street.
Sotelo could not see the shooting. After he heard gunshots, he drove Alvarado's car toward the motel to see what had happened. Sotelo saw Gomez stand up while holding his head and a security guard running toward Gomez. Sevilla called Sotelo's cell phone and said he was at a fast food restaurant on the northwest corner of Bristol and Segerstrom. When Sotelo picked up Sevilla, Sevilla said Rendon would not do "shit," so Sevilla got frustrated, closed his eyes, and shot Gomez. He stated he only shot once and then the gun jammed.
Gomez's car was found in the gas station parking lot. The next morning, a gas station customer found a .32 caliber semiautomatic handgun in the bushes.
DEFENSE TESTIMONY
Rendon testified in his own defense and admitted he committed a carjacking, but denied that he conspired to murder or attempted to murder Gomez. He had been working as a lookout for Alvarado. Rendon did not know Gomez and did not know that Alvarado was upset with Gomez. On October 21, Alvarado called Rendon and asked him to show up at the pancake house. Sotelo and Sevilla, whom Rendon did not know, approached his car; Sotelo said he and Alvarado were friends and that they needed Rendon's help to carjack a vehicle. Sevilla and Sotelo got into Rendon's car and discussed the carjacking.
A few minutes after Rendon arrived, Gomez parked his car at the motel. Sotelo got out of Rendon's car, and Rendon and Sevilla drove to the gas station, parked, and approached Gomez's car. They told Gomez to get out of the car, and Rendon got into the driver's seat. Gomez and Sevilla were arguing about the car. Rendon was waiting for Sevilla to get in the car when he heard a shot. He got scared and drove to the gas station without Sevilla, parked, and ran away. Rendon testified he never saw a gun and did not know Sevilla would shoot or try to kill Gomez. He denied telling Sevilla to "cap" Gomez, and further denied trying to kill Gomez, planning to kill Gomez, or knowing about a plan to kill Gomez.
PROCEDURAL HISTORY
In an information, Rendon, Alvarado, Sotelo, and Sevilla were charged with conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and carjacking (§ 215, subd. (a); count 3). The information alleged all defendants committed the attempted murder willfully, deliberately and with premeditation. (§ 664, subd. (a).) The information also alleged that Sevilla personally used a firearm in connection with count 2 (§ 12022.5, subd. (a)), and that Sevilla personally and intentionally discharged a firearm in connection with counts 2 and 3. (§ 12022.53, subd. (c).)
Rendon and Sevilla were tried jointly before the same jury. The jury found Rendon and Sevilla guilty on all counts charged, and found all the sentencing enhancement allegations to be true.
As explained, ante, Sotelo pled guilty and received a nine-year sentence in exchange for his testimony against the other defendants. Alvarado was tried separately, and was convicted of all charges. In an unpublished opinion (People v. Alvarado (June 26, 2018, G054576) [nonpub. opn.]), we affirmed the judgment of conviction against Alvarado.
As to Rendon, the court imposed an aggregate indeterminate prison term of 25 years to life, calculated as 25 years to life on count 1, life with the possibility of parole after seven years on count 2, and five years on count 3. Execution of sentence on counts 2 and 3 was stayed pursuant to section 654.
As to Sevilla, the court imposed a life sentence with the possibility of parole after seven years as to count 2, plus a consecutive determinate sentence of 20 years for the personal use of a firearm. The sentences on counts 1 and 3 and the section 12022.5, subdivision (a) enhancement were stayed pursuant to section 654.
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR IN INSTRUCTING THE JURY WITH CALCRIM NO. 301.
Rendon argues the trial court erred by instructing the jury that his testimony required corroboration if he was an accomplice. Rendon contends the instruction undermined his testimony and lessened the prosecution's burden of proof. The Attorney General contends the instruction was clear that only the portion of Rendon's testimony implicating Sevilla would require corroboration (assuming the jury concluded Rendon was an accomplice). We agree with the Attorney General.
The trial court instructed the jury with CALCRIM No. 301, as follows: "The testimony of only one witness can prove any fact, except for the testimony of an accomplice, Sergio Sotelo, whose testimony requires corroboration, supporting evidence. If you decide that Adrian Rendon is an accomplice, then any portion of his testimony that tends to implicate Kevin Sevilla in the commission or degree of a crime also requires corroboration supporting evidence. Before you conclude that the testimony of only one witness proves a fact you should carefully review all the evidence." The court also instructed the jury with CALCRIM Nos. 334 and 335, regarding accomplice testimony.
"An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] The court reviews instructions in context of the entire charge of jury instructions rather than in artificial isolation." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574; see People v. Holt (1997) 15 Cal.4th 619, 677.)
The testimony of an accomplice, when offered against a defendant, requires corroboration. (§ 1111; People v. Hillhouse (2002) 27 Cal.4th 469, 492-493.) A trial court must instruct the jury, sua sponte, that an accomplice's testimony must be corroborated by other evidence. (People v. Houston (2012) 54 Cal.4th 1186, 1223.)
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.)
Rendon argues that because his testimony "recounted his interaction with Sevilla and the circumstances of their joint interaction with Gomez at the scene of the incident," the entirety of Rendon's testimony tended to implicate Sevilla in the commission of the crime. Therefore, Rendon's argument continues, CALCRIM No. 301 incorrectly told the jury that the entirety of Rendon's testimony required corroboration.
We disagree with Rendon's argument. CALCRIM No. 301, as read to the jury, correctly informed the jury that "any portion of [Rendon's] testimony that tends to implicate Kevin Sevilla in the commission or degree of a crime" would require corroborating, supporting evidence. Rendon's testimony that he never saw a gun, did not know Sevilla would shoot or try to kill Gomez, did not tell Sevilla to "cap" Gomez, and did not try to kill Gomez, plan to kill Gomez, or know about a plan to kill Gomez did not tend to implicate Sevilla in the commission or degree of a crime. CALCRIM No. 301 did not require corroborating evidence for any of that testimony.
An argument similar to Rendon's was rejected by the court in People v. Johnson (2016) 243 Cal.App.4th 1247, 1251, in which two defendants were tried together for murder and attempted murder, and both testified at trial. One of the arguments on appeal was whether "CALCRIM No. 335 undermined their defenses by directing the jury to view their testimony with caution, and as requiring independent corroboration, without clarifying that this applied only to incriminating testimony given by each defendant against the other and not to exculpatory testimony by either defendant in support of his own defense." (Id. at p. 1273.) Because none of the testimony by either of the defendants was both incriminating and self-exculpatory, there was no error in the instruction. "The essence of each defendant's defense was that he did not intend to facilitate an attempted robbery or kidnapping, Johnson because he had independent motives for going to the campground and Thornton because he was unaware of the direct perpetrators' intent. As there was nothing in either defendant's defense of 'I did not intend to do this' that could be viewed as incriminating the other defendant, nothing in CALCRIM No. 335 directed the jury to view this testimony under anything other than the usual rules for evaluating a witness's credibility." (Id. at p. 1275.)
The court noted that on the issue of which of the defendants had used a baseball bat to break the arm of one of the victims, the testimony of the defendants was both incriminatory and self-exculpatory, as each blamed the other. (Id. at pp. 1274-1275.) There was no prejudice, however, because the jury found the charges relating to the use of a bat not true. (Id. at p. 1275.)
Rendon testified he was only intending to participate in a carjacking and was unaware of any plan to kidnap or kill Gomez. This testimony does not incriminate Sevilla because Sevilla's intent cannot be inferred from Rendon's claimed lack of intent. For the same reason, Rendon's self-exculpatory testimony that he did not tell Sevilla to "cap" Gomez did not incriminate Sevilla. There is no basis for believing the jury would have read CALCRIM No. 301 as requiring corroborating evidence for all of Rendon's testimony regarding his own knowledge and intent regarding the crimes against Gomez.
Finally, CALCRIM No. 334, to which Rendon raises no objection, clarified any claimed lack of precision in CALCRIM No. 301. CALCRIM No. 334 instructed the jury that if they decided Rendon was an accomplice, they could not convict Sevilla based only on Rendon's testimony. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Rendon argues that the allegedly erroneous instruction denied him his constitutional rights to due process and to present a complete defense. As explained, ante, the instruction was correct and proper, and did not deprive Rendon of his rights.
The Attorney General argues that even if the trial court erred in instructing the jury, any error was harmless. "Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution." (People v. Dickey (2005) 35 Cal.4th 884, 905.) An error would be prejudicial only if it was reasonably probable a result more favorable to Rendon would have been reached absent the error. (Ibid.)
Rendon contends any error should be evaluated under Chapman v. California (1967) 386 U.S. 18 because his constitutional rights were violated. Even under that standard, we would not find prejudicial error; the analysis in the text demonstrates beyond a reasonable doubt that the error did not affect the jury's verdict. (Id. at pp. 23-24.)
The evidence against Rendon was strong and corroborated. Sotelo testified Rendon met him and Sevilla in the pancake house parking lot and discussed the plan to carjack and kill Gomez. Gomez testified that Rendon snatched the keys from his hands and got into the driver's seat of his car. Gomez also testified that Rendon told Sevilla to "cap him." Rendon himself admitted that he, Sotelo, and Sevilla made a plan to, and then did, carjack Gomez. While Rendon denied conspiring to commit murder or attempting to murder Gomez, Rendon admitted to knowingly participating in a dangerous activity.
II.
THE TRIAL COURT DID NOT ERR BY DISCHARGING JUROR NO. 1, AND DID NOT VIOLATE
RENDON AND SEVILLA'S CONSTITUTIONAL RIGHTS BY QUESTIONING THE JURY
REGARDING JUROR NO. 1.
During the jury's deliberations, the trial court discharged a juror. Rendon and Sevilla claim the trial court abused its discretion in discharging the juror and impermissibly intruded on the jury's deliberations.
A.
Applicable Law and Standard of Review
Section 1089 authorizes the trial court to discharge a juror at any time if the juror becomes unable to perform his or her duty. "Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged." (People v. Espinoza (1992) 3 Cal.4th 806, 821.) A trial court "has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve." (People v. Millwee (1998) 18 Cal.4th 96, 142, fn. 19.) "[T]he court does have a duty to conduct reasonable inquiry into allegations of juror misconduct or incapacity—always keeping in mind that the decision whether (and how) to investigate rests within the sound discretion of the court." (People v. Engelman (2002) 28 Cal.4th 436, 442; see People v. Fuiava (2012) 53 Cal.4th 622, 712.) "Courts must exercise care when intruding into the deliberative process to ensure that the secrecy, as well as the sanctity, of the deliberative process is maintained. [Citation.] 'The need to protect the sanctity of jury deliberations, however, does not preclude reasonable inquiry by the court into allegations of misconduct during deliberations.'" (People v. Russell (2010) 50 Cal.4th 1228, 1251.)
The trial court's decision to remove a seated juror is reviewed under the "'demonstrable reality test.'" (People v. Fuiava, supra, 53 Cal.4th at p. 711.) Unlike the typical abuse of discretion standard, "[t]he 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 bias 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. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides. 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 that a juror was failing to follow the oath. In taking the serious step of removing a deliberating 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, 1052-1053 (Barnwell.)
B.
Proceedings
1. The jury begins deliberating; the jury sends the first note to the court; the court makes inquiries of individual jurors; the jury continues deliberating.
On June 23, 2016, the jury began its deliberations at the end of the day. The next day, they resumed deliberations, requested a readback of a portion of Rendon's testimony, and asked a question about the personal use of a firearm sentencing enhancement allegation.
On the afternoon of the following day (after about two full days of deliberation), the jury sent a note to the trial court, reading, in relevant part: "The majority of the jury is requesting guidance when a single juror is displaying challenges with recall, interpretation of the law set forth in [the] instruction[s] & unwilling to set aside bias." Over Rendon's trial counsel's objection, the court interviewed the jury foreperson in chambers. The foreperson explained that the majority of the jurors were concerned about Juror No. 1's "continuous statements of not being willing to see past the defendants' ages or socioeconomic status in deliberations, which is then putting some concern on being able to just rely on the law as set forth in your instructions." The foreperson also explained there were concerns about Juror No. 1's short-term memory, and stated that this problem was "beginning to be more and more evident." The foreperson explained there was "a complete almost disconnect of what the discussion just was," and that Juror No. 1 seemed to be "completely somewhere else."
Both the prosecutor and Sevilla's trial counsel agreed that the jury foreperson should be asked what was meant by the jury's note.
The court then decided to question three other jurors individually to help determine whether there was a problem with Juror No. 1's memory and ability to deliberate. One of the jurors was aware of the note the foreperson had sent to the court and agreed with it; the two other jurors were unaware of the note, but agreed with it after reading it. Although only two used the term "bias," all three agreed that Juror No. 1 had preset ideas about defendants' lack of intent. Two of these jurors also told the court that Juror No. 1 had issues with recall or confusion, and was "ha[ving] a hard time with following along."
The court then interviewed Juror No. 1, who believed that he was deliberating, and denied disagreeing with the law presented in the jury instructions. The court then dismissed the jury for the day, and instructed them to continue their deliberations the next morning. The court further told the jury to advise the court if it reached an impasse in its deliberations.
2. The jury sends notes to the court; the court makes further inquiries of individual jurors.
The jury resumed its deliberations the following day. Before recessing for the day (after about three full days of deliberation), the foreperson sent two notes to the court, one reading, "Jur[o]r cannot recall voting on counts. How do we proceed?" and the other reading, "We voted on a count Monday & Tuesday. He now cannot recall the multiple votes he cast. A jur[o]r has inquired directly about [h]is memory. 11 jur[o]rs are concerned that verdicts reached cannot be remembered by this one juror. Jur[o]r [No. 1] does not remember [Mrs. Gomez] testifying."
The court then interviewed juror Nos. 2 through 12 individually, in the presence of counsel. The jurors generally agreed that Juror No. 1 was confused, could not remember testimony, and could not remember having voted on various counts and enhancements. Nine of the jurors agreed that on the second, third, and fourth days of deliberation, they were required to take new votes on matters on which they had previously reached unanimous agreement. They did so because Juror No. 1 could remember neither having voted nor how he had cast his vote. Ten of the jurors agreed that Juror No. 1 could not remember the trial testimony, and specifically mentioned that he had forgotten that Gomez's wife had testified. While the jurors did not believe Juror No. 1 was refusing to deliberate, they consistently expressed the opinion that he was unable to deliberate due to his memory and confusion problems. They also opined that he was making it impossible for the jury as a whole to deliberate, as they were spending all their time reminding him what testimony had been given and what legal issues they had already agreed on.
Juror No. 1 said he was not aware of the notes that were sent to the court by the foreperson and "absolutely" disagreed with them. He recalled voting during the first two days of deliberation, and he did not know how the other jurors could say he did not recall how he had voted. Juror No. 1 explained that he had changed his vote on a sentencing enhancement because he had considered another juror's explanation of "another way to get to a true finding." He stated that he remembered Mrs. Gomez and her testimony. Ultimately, Juror No. 1 disagreed with the statements by the other jurors that he could not recall Mrs. Gomez's testimony, or even the fact that she testified, until the other jurors refreshed his memory.
The following is a discussion between the court and Juror No. 1:
"The Court: Do you have any idea why a large number of the jurors would say that you did not recall that [Mrs. Gomez] had testified until they reminded you? Any idea why they would say that? Do they hold any biases against you, or anything like that?
"Juror No. 1: No. I think—I think there was pressure from the foreman on a couple of occasions. When she began—yesterday after you gave us the instructions in the—when we were in the jury box yesterday, and you said, 'If it appears that there is an impasse, please notify the court' [¶] . . . [¶] and she read the instructions for doing that, how to do it, how not to check the box, how to write it out there but not check either one of the ones. She read that twice. One of the other jury members read it a second time too. [¶] And then without following that instruction and doing that, you know, according to what I understood would be happening, we hear a personal appeal by the foreman that she is not going to be able to sleep at night, you know, if we stayed with the same results and the same verdict on the attempted murder charge. She just—she said, 'I just can't sleep that way.' So a personal appeal she was making to convince [¶] . . . [¶] not based really on evidence."
"The Court: Let me get back to my specific question. There was a large number of the jurors that said when you were looking at the video—you recall looking at the video yesterday?"
"Juror No. 1: Yes. There were three parts.
"The Court: Right. That you did not—when it was brought to your attention regarding the vehicle or Mrs. Gomez, that someone had said, 'Well, but don't you recall when she testified?' And you—and a number of them, the majority of them, are saying that you had no recollection that she had testified until they reminded you and then brought it back to your attention, then you remembered it. Do you agree with that or disagree with that?
"Juror No. 1: We asked permission to see the—look at the videos, you know, again. [¶] . . . [¶] . . . That was granted, and we moved into the area where the projector was to look at the videos. I asked, you know, if there is any—well, the bailiff actually told us there would be no conversation out there while we are looking at the videos, so I paid extremely close attention visually. My vision is perfect. There is no problem with that. And so I focused visually on what was happening there. I made notes, you know, as we were looking at the videos. [¶] The reference to what the videos—why the videos were introduced into evidence and what they were there to prove or to show, of course that doesn't come out until you have corroborating information from some other source. I mean, the video itself is you see people moving, you see cars there, and the only thing that seemed to relate to the actual commission of a crime itself is in the fact that a vehicle was moved from one place to another place. [¶] . . . [¶] . . . So I remember all that. To have a clear understanding that her testimony helped connect all those dots, I remember her testimony, but they did not connect in my—"
"The Court: And that's fair. And that's absolutely fair. But my question, getting back to my question, a number of the jurors said that you had told them that you did not recall Mrs. Gomez testifying, that you didn't think she testified, and that when they brought it back to your attention and reminded you when she testified, then you recalled. Do you agree with that or disagree with that?"
"Juror No. 1: I disagree with that."
3. The court and counsel discuss the issue; the court discharges Juror No. 1; the jury restarts deliberations with an alternate juror; a verdict is reached.
After having spoken with all 12 jurors, and having heard argument from counsel, the trial court decided that Juror No. 1 should be discharged. The court noted that although the failure to deliberate had originally been an issue, the grounds for discharging Juror No. 1 related to his inability to deliberate due to his lack of concentration and his memory problems. The court emphasized that the other jurors were consistent in their description of the problem with Juror No. 1's inability to remember the evidence, and none showed any animus toward Juror No. 1, although they were clearly frustrated.
The court specifically referred to its question of Juror No. 1 regarding Mrs. Gomez's testimony. In addition to the nearly unanimous agreement by the other jurors that he could not remember Mrs. Gomez having testified, the court noted that Juror No. 1 was "totally off the question that I asked. Then I asked him a third time, and that's when he adamantly denied it. And I had to bring him back. I had to do what the jurors are saying they had to do when it came to discussing the evidence." The court noted that in responding to the court's question, Juror No. 1 "lost track," was "rambling" and "wandering," and looked "like . . . a deer in the headlights."
After discharging Juror No. 1, one of the alternate jurors replaced Juror No. 1 and began deliberating. After two more days of deliberating, the jury reached its verdicts.
C.
The Trial Court Did Not Err in Discharging Juror No. 1.
Sevilla argues the trial court erred by discharging Juror No. 1; Rendon joins in this argument. (Cal. Rules of Court, rule 8.200(a)(5).) The trial court discharged Juror No. 1 based on the statements of the other 11 jurors that he had problems of confusion and lack of recall that interfered with his ability to deliberate. The jurors' statements were supported by the trial court's one-on-one communications with Juror No. 1 in which Juror No. 1 had problems with focusing. We conclude the trial court did not err in discharging Juror No. 1.
Sevilla's trial counsel conceded that "regardless of how the court decides this matter, there is evidence that would support the decision either to remove him or to leave him." We could determine that Sevilla has forfeited the argument on appeal. We will nevertheless address the issue on its merits as to Sevilla as well as Rendon to avoid an inevitable claim of ineffective assistance of counsel.
A similar argument was raised in People v. Williams (1996) 46 Cal.App.4th 1767 (Williams), in which the appellate court affirmed the trial court's discharge of a juror whose "conduct apparently transformed the deliberation process into an exercise in futility." (Id. at pp. 1780-1781.) At a hearing conducted after jurors complained about one juror's "inability to deliberate," several jurors testified the juror "was inattentive, constantly requested that the jurors take time to organize their notes, forgot previous votes or discussions, and even attempted to alter the jury instructions." (Id. at p. 1780.) The trial court found the juror "was unable to comprehend simple concepts, was unable to remember events during deliberations such as recent discussions or votes, and was not following the law." (Ibid.)
The justification for discharging Juror No. 1 was more pronounced than in Williams. Sevilla argues that "the majority jurors were frustrated with Juror 1's deliberative style, his refusal to agree with the majority of the jurors on at least one count, his disagreement with what the circumstantial evidence showed and how the law should be applied, and his refusal to follow the trail of logic paved by the majority jurors."
Having reviewed the evidence before the trial court, we conclude it established a demonstrable reality that Juror No. 1 was unable to deliberate; the trial court therefore did not abuse its discretion in discharging Juror No. 1. The statements by the other jurors were clear and consistent: (1) Juror No. 1 had problems with short-term recall; (2) Juror No. 1 did not remember one witness testifying; (3) Juror No. 1 could not follow along with the jury's discussions; and (4) Juror No. 1 could not remember having cast votes on various counts and enhancements. Most telling was the trial court's discussion with Juror No. 1, who was unable to respond directly to a yes or no question, became confused and disjointed in his response, and who the court observed to be confused, rambling and wandering.
Of particular significance when considering whether the trial court abused its discretion are the court's statements regarding the demeanor of the jurors as they discussed the issue in chambers. When Rendon's counsel expressed the opinion that the jurors were bullying Juror No. 1 into siding with them, the court stated: "That's not my observations. Unfortunately what does not show up on the record is the body language, the facial movement, and anything else, of the people we talked to. I've got the best view in the house. You're all welcome to sit back there and watch them. I'm not seeing that. I am not seeing bullying by any stretch. To the contrary, I'm seeing coddling, if anything." Again, the court stated, "But if you look in total of what I'm getting at, wouldn't it be great . . . if we had video going at the same time as the official record with the court reporter to be able to see the demeanor of people when they testify, or talking to is even in chambers? We don't have that ability. We get to see it. I get to see it better than anybody. And that's a big factor." (Italics added.)
Finally, in describing Juror No. 1's response to the court's questions, the court stated: "I set out the question as simple as I possibly could make it, and he completely—and I wish you folks were standing behind me at the time. He lost track. I am going to tell you right now, I saw it in his face, he lost track when he answered that question. When he tried to answer the question he responded twice . . . totally off the question that I asked. Then I asked him a third time, and that's when he adamantly denied it. And I had to bring him back. I had to do what the jurors are saying they had to do when it came to discussing the evidence. [¶] . . . [¶] . . . I am not looking for one or two things, I'm looking for a sense of being of this individual. And I think that's what you folks are looking for also. Not just, 'Aha. Okay. We are going to kick him off because he said he didn't remember something.' No, it doesn't work that way, folks. Everybody knows that. [¶] He started rambling with that last question I asked him. He started wandering. I can't even describe for you in a cogent manner the look on his face. It was like—I don't want to say a deer in the headlights, but pretty close to it. And then I brought him back to the question. And I'm thinking to myself, 'This is exactly what the jurors are telling me with respect to the evidence.'"
The cases Sevilla cites do not change our conclusion. In U.S. v. Symington (9th Cir. 1999) 195 F.3d 1080, the district court dismissed a juror after the foreperson had sent the judge a note reading, in relevant part: "We have earnestly attempted to follow your last directive to continue with our deliberations. However, the majority of the jurors sincerely feel that the juror in question cannot properly participate in the discussion with us. [¶] Reasons: Inability to maintain a focus on the subject of discussion. [¶] Inability to recall topics under discussion. [¶] Refusal to discuss views with other jurors. [¶] All information must be repeated two to three times to be understood, discussed, or voted on. Immediately following a vote, the juror cannot tell us what was voted. [¶] We question the ability to comprehend and focus on the information discussed." (Id. at p. 1083.) After separately questioning each member of the jury, the court dismissed the juror in question "'for being either unwilling or unable to participate in the deliberative process.'" (Id. at p. 1084.)
The Ninth Circuit reversed, holding "that if the record evidence discloses any reasonable possibility that the impetus for a juror's dismissal stems from the juror's views on the merits of the case, the court must not dismiss the juror." (U.S. v. Symington, supra, 195 F.3d at p. 1087.)
In People v. Cleveland (2001) 25 Cal.4th 466, 484 (Cleveland), the California Supreme Court specifically rejected U.S. v. Symington's standard precluding discharge of a juror who is unable or unwilling to deliberate when there is a "reasonable possibility" that the discharge results from the juror's views on the merits of the case. Instead, the court reiterated the demonstrable reality standard. (Id. at p. 485.)
The trial court in Cleveland had discharged a juror, finding "'that he is not functionally deliberating with the other jurors, that they would ask him specific questions as to elements and facts, and he refuses to respond, and you can't have a meaningful discussion unless you discuss what the particular facts and elements are. It doesn't do any good to talk in generalities as he does want to, so he is excused.'" (Cleveland, supra, 25 Cal.4th at p. 473.) The appellate court reversed, and the Supreme Court affirmed the appellate court's judgment. "It is possible that Juror No. 1 employed faulty logic and reached an 'incorrect' result, but it cannot properly be said that he refused to deliberate. Juror No. 1 participated in deliberations, attempting to explain, however inarticulately, the basis for his conclusion that the evidence was insufficient to prove an attempted robbery, and he listened, even if less than sympathetically, to the contrary views of his fellow jurors." (Id. at p. 486.)
Similarly, in People v. Elam (2001) 91 Cal.App.4th 298, the appellate court held that the trial court had erred by discharging a juror because there was no demonstrable reality that the juror could not perform his duties to deliberate. "The foregoing complaints do not necessarily demonstrate inadequate comprehension of the English language as opposed to legitimate disagreement over the meaning to be given certain instructions, interpretations of the law and evidence. They are closely akin to the complaints registered in People v. Cleveland, supra, 25 Cal.4th 466, which the Supreme Court found insufficient to justify discharge of a juror. [Citation.] [¶] As explained in Cleveland, 'the circumstance that a juror does not deliberate well or relies upon faulty logic or analysis . . . is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts . . . is not a ground for discharge.' [Citation.] A juror's inarticulateness in explaining his position likewise is not a ground for discharge. [Citation.] [¶] Moreover, it is noteworthy that the other jurors showed great impatience with Juror No. 3. The jury had deliberated less than three hours when the foreperson sent the complaint to the court. This suggests that 11 jurors reached agreement rather quickly, making the failure of the 12th juror to agree all the more annoying and frustrating. In such an atmosphere, it is more likely that majority jurors will attribute genuine differences of opinion to 'language problems,' or 'lack of comprehension,' where possible. [¶] The record does not establish '"as a demonstrable reality"' that Juror No. 3's language difficulties, as opposed to his failure to deliberate well, his reliance upon faulty logic or analysis and his disagreements over the law and the evidence, accounted for the difficult deliberations the jury was experiencing. It therefore does not establish '"as a demonstrable reality"' that Juror No. 3 was unable to perform as a juror. [Citation.] Necessarily, then, it was an abuse of discretion for the trial court to discharge Juror No. 3. The error requires reversal of the judgment." (Id. at pp. 317-318.)
D.
The Trial Court Did Not Impermissibly Intrude on the Jury's Deliberative Process.
A. Summary
Rendon argues the trial court impermissibly intruded on the deliberative process by questioning the jurors, thereby violating his constitutional rights and requiring reversal. As we will demonstrate in detail, Rendon's argument fails on this record.
Sevilla does not separately address this argument, but joins in all arguments made by Rendon. (Cal. Rules of Court, rule 8.200(a)(5).) When the issue of Juror No. 1's alleged inability to deliberate was brought to the attention of the court and counsel, Sevilla's trial counsel agreed that the court should make inquiry of the jurors. The Attorney General suggests that Sevilla has forfeited this argument. (People v. Russell (2010) 50 Cal.4th 1228, 1250.) The Attorney General also contends that Rendon forfeited any argument that the court's questions to the jurors were improper because he did not assert any objections to the scope of the court's questions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 113 [claim is forfeited if the party did not object in the trial court on the specific grounds raised on appeal].) Without deciding whether these arguments were forfeited, we will address the issues on their merits to avoid a later claim of ineffective assistance of trial counsel.
We begin our analysis of this issue with the recognition of the well-established rule reiterated and applied by our Supreme Court in its unanimous opinion in Barnwell, supra, 41 Cal.4th at page 1051: "When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required." Our Supreme Court in emphasized: "It bears repeating that the court was required to conduct a hearing to resolve" concerns over a juror. (Id. at p. 1054.) As recognized in Barnwell, the basis for good cause to discharge a juror may be established by the testimony of other jurors in response to questioning by the judge. (Ibid.) In Barnwell, the trial court examined one juror and, based on that first juror's testimony, the "court was clearly required to examine the other jurors." (Ibid.)
The experienced trial court in the instant case cited to Barnwell three times and then followed and applied the Supreme Court's opinion. As we will describe in detail, the trial court's questions to the jurors were well within its discretion.
The Sixth Amendment right to trial by jury includes "the right to have the jury's deliberations conducted privately and in secret, free from all outside intrusions, and extraneous influences or intimidations." (People v. Oliver (1987) 196 Cal.App.3d 423, 428.) "'Courts must exercise care when intruding into the deliberative process to ensure that the secrecy, as well as the sanctity, of the deliberative process is maintained.'" (People v. Nelson (2016) 1 Cal.5th 513, 568 (Nelson).) As noted ante, once the trial court was on notice that there may be good cause to discharge a juror, it had a duty to make further reasonable inquiry. That inquiry was required to focus on the conduct of the jury and not on the content of its deliberations. (Cleveland, supra, 25 Cal.4th at p. 475.) As we will explain, the record in this case shows that the trial court did not run afoul of the principles discussed in Nelson. B. The Record
1. The First Note
Let's review and analyze step-by-step the trial court's careful and incremental fulfillment of its duties to investigate the complaints from the jury about one juror.
Two days into jury deliberations (after weeks of trial), the jury foreperson gave the court the following note: "The majority of the jury is requesting guidance when a single juror is displaying challenges with recall, interpretation of the law set forth in the instructions" and is "unwilling to set aside bias."
The court solicited and received options for a response to this note from all counsel. Next, the court brought in the foreperson into chambers in the presence of counsel. The foreperson reported that the expressed concerns were held by "10 to 11" jurors. The foreperson volunteered that juror No. 1 had a "challenge with recalling things" and problems with short-term memory, among other things.
The court expressed its concern with the reported "memory issues," consulted with counsel, and invited a second juror to be questioned.
Juror No. 11 agreed with the statements in the foreperson's note. The court cautioned the juror not to talk about deliberations. Juror No. 11 reported that juror No. 1 "just stares" and "forgets." The court decided to ask other jurors about the note.
Juror No. 10 also agreed with the note and stated that Juror No. 1 "has a hard time with following along." Juror No. 3 also agreed with the note.
Next, Juror No. 1 was interviewed by the court and disagreed with the note.
Even after these consistent reports from jurors about the problems of juror No. 1, the court did not remove him. Instead, the court properly admonished the jury to keep deliberating and to come back in the morning.
2. The Second Note
On the fourth day of deliberations, the jury gave the following note to the court: "We voted on a count Monday and Tuesday. He [juror No. 1] cannot recall the multiple votes he cast. A juror has inquired directly about his memory. 11 jurors are concerned that verdicts reached cannot be remembered by this juror. Juror number 155 does not remember." At this point, the court correctly stated this question inquired about the "memory" of juror No. 1. Next, the foreperson reported that juror No. 1 does not recall how he voted and that "verdicts reached cannot be remembered by this one juror."
The court stated on the record that it had read Barnwell and Williams, supra, 46 Cal.App.4th at page 1780 (juror properly discharged because, among other things, the juror "was unable to remember events during deliberations such as recent discussions or votes.").
3. The Jurors' Statements About Juror No. 1's Memory Problems.
Under Barnwell, the court was required to, and did, follow up on the issues raised by the jury. Here is a summary of the input of each of the jurors based on this required investigation, in the order of their interviews. The court interviewed them one at a time, in chambers, and in the presence of counsel. The court always read the foreperson's second note and asked each juror whether the juror agreed with the note.
Juror No. 12 (the foreperson) stated that three times, juror No. 1 "could not recall how he had voted." He was "glaring" and other jurors are concerned. The day before, juror No. 1 had no recollection that there was a particular witness in the trial. The foreperson questioned juror No. 1's "capacity" and described him as "incoherent" and "not lucid." He does not understand what he has agreed to.
Juror No. 11 reported that juror No. 1 did not remember how he voted or whether witness Mrs. Gomez had testified.
Juror No. 10 stated juror No. 1 did not recall whether Mrs. Gomez testified. Juror No. 1 is "confused." The court asked: "Does he have a recollection of the facts, of the evidence, as to what the witnesses testified to?" Juror No. 10 answered: "No. No."
Juror No. 9 stated juror No. 1 has a lack of comprehension recalling his votes and contradicts himself. He did not remember Mrs. Gomez testifying and he "doesn't recall the trial that was put forth in front of him."
Juror No. 8 agreed with the foreperson's note and said juror No. 1 is "confused," does not recall witnesses half the time, and did not recall Mrs. Gomez testifying.
Juror No. 7 also agreed with the foreperson's statement. When asked why, juror No. 7 said that juror No. 1 did not recall his votes, and that, "I don't
think he remembers" testimony. Juror No. 7 reported that because of juror No. 1, the jury goes over the "same issue over and over and over several times." Juror No. 7 said it's "scary" when he does not remember and that he gets all the witnesses confused.
Juror No. 6 said juror No. 1 does not recall votes.
Juror No. 5 also agreed with the foreperson's statement and cited to juror No. 1's lack of memory on votes. Juror No. 1 had issues remembering who testified or did not testify and that when he talks, "there is no continuity." Juror No. 5 agreed that juror No. 1 had issues remembering who testified and who did not and had trouble remembering evidence, including the testimony of Mrs. Gomez.
Juror No. 4 also agreed with the foreperson's comment and reported that juror No. 1 "didn't seem to comprehend the law," had "memory lapses," and did not remember what he voted on.
Juror No. 3 said that juror No. 1 did not recall how he voted and had "other issues related to memory."
Juror No. 2 agreed with the foreperson's note and stated that "I do agree that recall has been a concern" because juror No. 1 has "trouble remembering any evidence."
Juror No. 1 denied he had had memory problems and responded to several questions from the court, which we quoted ante.
4. The Court's Questions
Those were the jurors' answers, but what about the court's questions? Both phases of the questioning of the jurors were prompted by written notes from the jury. In both phases, the court read the notes word for word to the jurors and asked each whether the juror agreed or disagreed with the note. When the juror answered, the court asked, "why?" or "how?" The court's follow-up questions were in the nature of clarifying the juror's response (e.g., many times the court asked, "what do you mean?"), or following up for specific examples, or asking "what is your concern?" The court was careful not to intrude on the deliberations and reminded the jurors of that point.
Importantly, in response to the second note, the court's questions of the 12 jurors were consistently targeted at the issue of juror No. 1's memory of votes and of a witness testifying.
Of all the questioning in the second phase, Rendon and the dissent focus on juror No. 6. The court first asked if the juror was in agreement with the foreperson's note. The juror answered, "Well, he kind of explained that away this morning." The court asked, "How was that? What did he explain away?" After the answer, the court asked, "You mentioned a lapse of memory? What are you referring to? Is he having a lapse of memory?" After the juror explained juror No. 1's confusion over counts, the court asked, "Does he have any issues—well, are there other issues you're concerned about regarding his demeanor, conduct, memory, anything else?" Then the juror gave examples of juror No. 1's confusion over people in a video.
Of 126 pages of transcript of the questioning of the jurors, the only arguably problematic issue comes in the next pages. We quote the preliminary non-controversial questions for context. The court asked, "[H]ow come you . . . have gone over [the evidence] so many times? I mean, that's okay. Jurors do that all the time. Was there a specific reason you were going over it? Were you going over it for his benefit?
"Juror No. 6: Yes.
"The Court: Was it to change his mind on something or was it because he didn't recall something?
"Juror No. 6: To change his mind because we all 11 feel that he's not basing his opinion on anything but his feelings, not on what we were actually presented with."
We next quote the only two questions that elicited responses that arguably could intrude on jury deliberations.
"The Court: And what were those feelings that he's basing it on his feelings?
"Juror No. 6: Sympathy. You know, 'he was nervous, and this could have happened or this could have happened.' And he seems like he's making up other scenarios that don't jive. [¶] . . . [¶]
"The Court: Do you feel he's following the law?"
Juror No. 6: "I think the crux of the matter is intent," and explains. The court then immediately refocused its questioning to the memory issue: "Okay. Is he remembering the evidence or is he having challenges remembering the evidence?"
We do not believe these two questions to and the responses of one juror improperly intruded on the jury's deliberations. Even if they did, those two questions and their answers did not amount to coercion or other reversible error under Nelson.
5. The Court's Ruling and Explanation on the Record
After interviewing all the jurors, the court then made and explained its ruling discharging juror No. 1. The court again (for the third time) cited and relied on Barnwell and Williams. The court stated that the "demeanor" of juror No. 1 was "a big factor." The court—based on its own interaction with juror No. 1—described juror No. 1: "He lost track." "I saw it in his face, he lost track when he answered that question." "I had to ask him the question three times." He was "rambling" and "wandering."
In Williams, the court observed that the conduct of a juror who could not remember votes or evidence "apparently transformed the deliberation process into an exercise in futility." (Williams, supra, 46 Cal.App.4th at pp. 1780-1781.) The same was true in this case.
Thus, the trial court followed and applied Barnwell's directive of stating its reasons and observations on the record: "In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides. 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 that a juror was failing to follow the oath. In taking the serious step of removing a deliberating juror the court must be mindful of its duty to provide a record that supports its decision by a demonstrable reality." (Barnwell, supra, 41 Cal.4th at p. 1053.)
As in Barnwell, the evidence of the differing descriptions by the other jurors and juror No. 1 may be in conflict. As recognized in Barnwell: "Often, the identified juror will deny it and other jurors will testify to examples of how he or she has revealed it. [Citation.] In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony. The trial court may also draw upon the observations it has made of the jurors during voir dire and the trial court's factual determinations, based, as they are, on firsthand observations unavailable to use on appeal." (Barnwell, supra, 41 Cal.4th at p. 1053.) The trial court is entitled to believe the other jurors and disbelieve the juror at issue. (Ibid.)
In our view, the trial court did an excellent job fulfilling its obligations under difficult circumstances.
Having read and analyzed the transcript of the court's conversations with the jurors, we conclude the trial court's questions were designed to make inquiry regarding the memory and conduct of juror No. 1, not the content of the jury's deliberations. Any intrusion into the jury's deliberative process was not sufficient to deprive Rendon and Sevilla of their constitutional rights.
The trial court proceeded carefully and incrementally, first questioning the foreperson, then questioning three other jurors and juror No. 1 before sending the jury back to deliberate further. After receiving additional information that Juror No. 1 was unable to fulfill his duties because of memory problems, the court questioned all jurors individually. The court exercised care in its questions, and advised the jurors that they should not reveal details about their deliberations or the results of any voting. The trial court's assessment was that "they're being very careful not to tell us where they are on the case, and I think that's kudos to them for doing that." C. Nelson and Other Authority Relied on by Rendon.
Nelson, supra, 1 Cal.5th 513, on which Rendon and the dissent rely, does not dictate a different result in this case. The trial court's questions were within the scope of the questions permitted by Nelson and, in any event, Nelson is distinguishable from this case. In Nelson, the trial court committed reversible error by requiring the jurors to complete a written questionnaire, and orally questioning some of them about their deliberations after they informed the court they were deadlocked. (Id. at pp. 561-562.) The Supreme Court concluded this practice was an impermissible intrusion into the deliberative process. "[A] trial court may intervene in jury deliberations where it receives reports of juror misconduct or in response to an impasse, but such interventions must be limited and undertaken with the utmost respect for the sanctity of the deliberative process. In this case, the trial court went considerably beyond any permissible intervention and took action that undermined the sanctity of jury deliberations and invaded the jurors' mental processes. Based solely on the reported impasse, the court subjected the jurors to a detailed questionnaire that asked them to report on the thoughts and conduct of their fellow jurors—specifically, whether the jurors were refusing to deliberate, whether they were basing their position on anything other than the evidence and jury instructions, and whether they were expressing views about the inappropriateness of the death penalty or life without parole based on anything other than evidence and law. It was clear to the jury that the purpose of this inquiry was to solve the problem of the jury's deadlock, and the inquiry therefore communicated to holdout jurors that their deliberative processes would be reported by fellow jurors and scrutinized by the court. This was improper. '"'As a general rule, no one—including the judge presiding at a trial—has a "right to know" how a jury, or any individual juror, has deliberated or how a decision was reached by a jury or juror.'"'" (Id. at pp. 569-570.) The trial judge's questioning in the instant case is not at all analogous to the judge's conduct or questions in Nelson.
As we noted at the outset of our discussion of the record, California Supreme Court authority required the trial court here to conduct whatever inquiry was reasonably necessary to determine the validity of the concerns about juror No. 1 identified by the foreperson and other jurors. As we have detailed, the trial court performed its duty admirably and limited its questions with respect for the secrecy and sanctity of the deliberation process. The court's questioning of the jurors in this case does not in any way resemble the contents of the questionnaire in Nelson. Nothing in this record indicates that the court's questioning affected the jury's deliberations. Nor was there any indication the jury was coerced or intimidated by the court, as in Nelson.
Furthermore, in Nelson, the problem reported was after an impasse, not a reported inability to deliberate before any impasse. (Nelson, supra, 1 Cal.5th at p. 569.) Indeed, in Nelson, the Supreme Court pointed out that "the trial court's inquiry was not triggered by an indication or allegation of juror misconduct. Rather, the triggering event was that the jury reported itself to be at an impasse after several days of deliberation." (Ibid.) Here, the questioning was triggered by reports of juror misconduct, not that an impasse occurred.
An impasse is a qualitatively different problem than juror misconduct, and the actions a trial court may take in response to an impasse are spelled out in the California Rules of Court. (Nelson, supra, 1 Cal.5th at p. 569.) Questioning the jurors about the content of their deliberations is neither required nor permitted.
In sum, the actions taken by the trial court in Nelson and the resulting pressure placed on jury bear no resemblance to the reasonably necessary questions asked by the trial court in this case. Hence, on this record, Nelson does not support a different result.
Rendon and the dissent also cite U.S. v. Thomas (2d Cir. 1997) 116 F.3d 606 (Thomas), in which the appellate court reversed the district court's dismissal of a juror who had expressed an intention to disregard the law. "[A] refusal to apply the law as set forth by the court constitutes grounds for dismissal [of a juror] under [Federal Rules of Criminal Procedure,] Rule 23(b). We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case. We hold that the district court erred in dismissing a juror, based largely on its finding that the juror was purposefully disregarding the court's instructions on the law, where the record evidence raised the possibility that the juror's view on the merits of the case was motivated by doubts about the defendants' guilt, rather than by an intent to nullify the law." (Id. at pp. 608-609.)
The Thomas court accepted the rule of U.S. v. Brown (D.C. Cir. 1987) 823 F.2d 591, 596: "'[A] court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations. Thus, unless the initial request for [a juror's] dismissal is transparent, the court will likely prove unable to establish conclusively the reasons underlying it. Given these circumstances, we must hold that if the record evidence discloses any possibility that the request to discharge stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request.'" (Thomas, supra, 823 F.2d at pp. 621-622.)
Thomas is inapplicable here for at least two reasons. First, the standard applied in U.S. v. Brown and accepted in Thomas was specifically rejected by the California Supreme Court in Cleveland (2001) 25 Cal.4th 466, 484. Indeed, in Cleveland, the Supreme Court reaffirmed the California rule that requires the trial court to conduct "whatever inquiry is reasonably necessary to determine" whether grounds for discharge of a juror exist. (Ibid.) Second, the issue in Thomas was whether the juror in question had committed himself to disregard the law. Here, the issue was whether Juror No. 1 was able to deliberate due to problems of memory.
III.
RENDON AND SEVILLA ARE ENTITLED TO A LIMITED REMAND TO MAKE A RECORD FOR A
YOUTH OFFENDER PAROLE HEARING.
Rendon and Sevilla request a limited remand pursuant to People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin), to make a record for their eventual parole hearings.
Section 3051 provides that a person under 25 years of age when the offense is committed is entitled to a youth offender parole hearing at a particular point during his or her term. (Id., subd. (b)(1)-(3).) At such a hearing, "in reviewing a prisoner's suitability for parole [the Board of Parole Hearings] shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
A person sentenced to a determinate term is entitled to parole hearing during the 15th year of incarceration, unless previously released. (§ 3051, subd. (b)(1).) A person sentenced to a life term of less than 25 years to life is entitled to a parole hearing during the 20th year of incarceration, unless previously released or otherwise entitled to an earlier hearing. (Id., subd. (b)(2).) A person sentenced to a term of 25 years to life is entitled to a parole hearing during the 25th year of incarceration, unless previously released or otherwise entitled to an earlier hearing. (Id., subd. (b)(3).)
When a defendant claims the lack of an opportunity to put on the record information relevant to a later youth offender parole hearing, the appellate court first reviews the record to see whether the defendant had a sufficient opportunity to do so already. (Franklin, supra, 63 Cal.4th at p. 284.) If the defendant already had a sufficient opportunity, nothing more is required. If it is clear the defendant did not have a sufficient opportunity, we remand to allow the trial court to receive submissions and, if appropriate, conduct an evidentiary hearing subject to the procedures set forth in section 1204 and California Rules of Court, rule 4.437. (Franklin, supra, 63 Cal.4th at p. 284.) And if it is not clear whether the defendant had a sufficient opportunity, we remand to the trial court to make a determination whether additional evidence should be provided. (Ibid.)
Rendon and Sevilla were 21 and 18 years old, respectively, when the crimes were committed, and will therefore be eligible for youth offender parole hearings. Both claim, however, that they were denied the opportunity to present relevant evidence to the trial court to support those parole hearings.
At the time of their sentencing, section 3051 applied to persons under 23 years of age when the crime was committed—a group which encompassed Rendon and Sevilla. The failure to address these issues now, rather than when Rendon and Sevilla are eligible for youth offender parole hearings, can only result in the loss of relevant evidence.
The Attorney General contends Rendon and Sevilla did not suffer any prejudice. Before sentencing, the prosecutor filed a sentencing brief. Probation and sentencing reports were prepared and filed for Rendon and Sevilla. None of these documents mentions the possibility that Rendon and Sevilla would be entitled to a youth offender parole hearing, or addresses the provisions of section 1204 or rule 4.437 of the California Rules of Court. When the court was prepared to impose sentence, counsel did not request the opportunity to further address the court.
The Attorney General notes that Rendon submitted letters to the trial court from himself and others and wrote a report about his personal history and future plans, which are included in his probation and sentencing report. All of this material, however, was geared toward the trial court's sentencing decisions, as these documents refer to Rendon's then-current job opportunities and substance abuse program admissions, which supported a grant of probation or a shorter prison sentence.
We conclude that Rendon and Sevilla did not have a sufficient opportunity to present evidence relevant to their diminished culpability as juveniles, which would be relevant at a youth offender parole hearing. We therefore remand this matter to the trial court to permit Rendon and Sevilla to present evidence relevant to a youth offender parole hearing, pursuant to sections 3051 and 4801, consistent with the procedures set forth in section 1204 and California Rules of Court, rule 4.437.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for the limited purpose of permitting Rendon and Sevilla to present evidence relevant to a youth offender parole hearing.
FYBEL, J. I CONCUR: THOMPSON, J. ARONSON, J., Dissenting.
Trial courts face a difficult task when investigating whether a juror committed misconduct during deliberations. The court has an obligation to investigate, which often requires the court to question some jurors about the conduct of one or more other jurors. But the court must proceed cautiously with its interrogation, lest it invade "the sanctity of jury deliberations" by delving into "the jurors' mental processes." (People v. Nelson (2016) 1 Cal.5th 513, 569 (Nelson).)
Here, the trial court attempted to navigate this difficult terrain when investigating whether to remove a juror during deliberations in the trial of defendants Adrian Rendon and Kevin Jesse Sevilla. The majority concludes the court carefully questioned the jurors and told them not to reveal details about their deliberations. (Maj. opn. at p. 23, 29.) True, the court told the jurors at the outset of questioning not to discuss the content of their deliberations, but they did so anyway, usually in response to the court's questions, which covered nearly all aspects of the deliberations. The subjects discussed included discussion of the evidence supporting the requisite criminal intent, the numerical divide of the jury, opinions about Juror No. 1's motivation for maintaining his minority position, and the thought processes of the jurors. Based on my review of the court's questions to the jurors and their responses, which covers more than 100 pages of the trial transcript, I cannot agree with the majority the court's questions were benign and unintrusive.
A criminal defendant has a Sixth Amendment right to trial by an impartial jury. Secret jury deliberations are essential in securing that right. (Nelson, supra, 1 Cal.5th at p. 568.) As our Supreme Court explains, "[s]ecrecy affords jurors the freedom to engage in frank discussions, free from fear of exposure to the parties, to other participants in the trial, and to the public. [Citation.] The mental processes of deliberating jurors are protected, because '[j]urors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations.'" (People v. Engelman (2002) 436, 443 (Engelman); see People v. Cleveland (2001) 25 Cal.4th 466, 476 (Cleveland).)
Generally, "'no one - including the judge presiding at a trial - has a "right to know" how a jury, or any individual juror, has deliberated or how a decision was reached by a jury or juror.'" (Cleveland, supra, 25 Cal.4th at p.481.) A trial court may conduct "'reasonable inquiry'" into secret jury deliberations when it receives an allegation a juror is unable or unwilling to deliberate. (Nelson, supra, 1 Cal.5th at p. 569; Cleveland, supra, at p. 484.) But the inquiry "must be limited and undertaken with the utmost respect for the sanctity of the deliberative process." (Nelson, supra, at p. 569.) As the Supreme Court explained in Engelman, supra, 28 Cal.4th at p. 445, "even though refusal to follow the court's instructions on the law constitutes misconduct, a court's inquiry regarding a juror's motivations could 'compromis[e] the secrecy of the jury's deliberations.'" The court "warned of the risk inherent in 'permit[ting] trial judges "to conduct intrusive inquiries into . . . the reasoning behind a juror's view of the case, or the particulars of a juror's (likely imperfect) understanding or interpretation of the law as stated by the judge."'" (Ibid.)
Here, the record shows numerous instances where the court, in a conscientious effort to determine initially whether Juror No. 1 engaged in misconduct, and later whether he had cognitive issues that prevented him from serving on the jury, exceeded a reasonable inquiry and inappropriately explored the motivations and mental processes of the jurors and the content of their deliberations. (See People v. Bowers (2001) 87 Cal.App.4th 722, 733 ["the process of examining jurors to determine whether someone is refusing to deliberate often inadvertently and inappropriately reveals the jurors' thought process" despite the trial court's efforts to limit its investigation].) I describe only the most prominent examples from this lengthy record.
In response to the jury's first note, the trial court questioned Juror No. 12, the foreperson, and asked her to explain the note. Juror No. 12 revealed the majority of jurors, "10 to 11 of them," were concerned about Juror No. 1's "continuous statements of not being willing to see past the defendants' ages or socioeconomic status . . . ." The court responded, "Can you give me . . . an example?" Juror No. 12 explained, "the concern is his only consideration is the youth of the defendants." Exploring the matter further, the court asked "What do you mean 'only consideration?'" The juror responded, "his consideration is that they're young, so it's presumed that he can't get past any of the law because all he's considering is their age." The following discussion ensued:
"The Court: Has he said that?
"Juror No. 1: In a couple of different scenarios, yes.
"The Court: Has he deliberated as far as discussing the elements of the law, and
"Juror No. 12: The law is not allowed to be interpreted for the law itself. There is a hang-up with the word 'intent,' reading over the definition on several occasions about the definition of intent as set forth in the law, I don't remember, I think it's page 8, if I'm not mistaken, taking the literal sense of the instructions that you gave, to only use the interpretation given from a legal perspective in the instructions versus the intent of what may be used out in common language.
"So in deliberating specifically the intent of something, he's seeing only the fact of their youth, they're too young to understand what their intent may or may not have been
"The Court: Okay.
"Juror No. 12 - their socioeconomic background, they don't understand.
"The Court: Okay. All right."
The court next questioned Juror No. 11 and asked why the juror thought Juror No. 1 was biased. Juror No. 11 speculated Juror No. 1's past work "in the inner city" motivated him not to follow the instruction on intent. The court explored the issue further in the following exchange:
"The Court: Okay. And why do you feel he's not following that instruction?
"Juror No. 11: We were finishing day two of deliberations, and we keep going back to intent.
"The Court: Okay
"Juror No. 11: We are not moving forward.
"The Court: Well, that may well be very valid and viable deliberation. Intent is a big issue. But is there something that he is doing or not doing relative to the issue of intent that gives you concern that he has a bias?
"Juror No. 11: So
"The Court: What do you think the bias is, in your opinion? What do you think the bias is?
"Juror No. 11: I think the bias is spending a good amount of life with inner city kids, and seeing their hardships, and possible seeing things, them not treated well.
"The Court: What is happening to make you think that?
"Juror No. 11: When he was introducing himself he talked at length about it."
The court then asked for an example of Juror No. 1's bias, and Juror No. 11 responded, "I think that where the defendants came from and how they grew up doesn't always change the facts of what happened." The court responded, "Okay. And that's okay. But what has Juror No. 1 done or said to give you concern that he's not following the jury instruction as relates to bias?" Juror No. 11 repeated his earlier complaint about Juror No. 1's views of intent, and revealed Juror No. 1 was the only one who harbored doubt "[i]n his mind," and later complained "we've been in there for two days now, and we are not getting anywhere."
The court again explored Juror No. 1's motives and thought processes with Juror No. 10, who revealed Juror No. 1 focused on the defendants' "thought process" and thought the defendants "were not knowing" when the crime occurred. The court asked, "Why does he think they were forced to do it?" The juror responded, "Because he thinks his cousin made him do it." The following exchange took place:
"The Court: When I see - Here is what raises a red flag to me. I am not sure it is a red flag yet. When this says, 'Unwilling to interpret the law to set aside bias'
"Juror No. 10: Right.
"The Court: - That's a concern for everybody.
"Juror No. 10: Right.
"The Court: And that's kind of what I'm trying to get a handle on. When someone uses bias, that means they might not be following the law.
"Juror No. 10: And they're not. And he's not.
"The Court: Why isn't he?
"Juror No. 10: He's not."
More of the same inquiry occurred with Juror No. 3, who complained Juror No. 1 "does not want to connect the dots" and despite extended discussion, continued to harbor doubts about "what they [the defendants] were getting into." The court asked "Is there anybody else in agreement with his position?" The juror said no.
After interviewing Juror No. 1, the trial court directed the jury to resume their deliberations. The court retrospectively adopted as its finding that Juror No. 1 "was coherent, he wasn't absent-minded, he wasn't feeble, he seemed [] - he's highly educated," and his stance as a holdout was "the normal part of a jury trial." But this finding applied to the first round of juror interviews. After further deliberations, the jury gave the court a second note complaining about the Juror No. 1's failure to recall votes taken during deliberations. The court decided to interview every juror after rejecting defense counsel's objection that doing so would interfere with the jury's deliberations. The court's focus now shifted to Juror No. 1's cognitive abilities.
In this second phase of juror interviews, the record shows several instances where the trial court again delved into the jurors' mental processes and their substantive discussions. For example, the court asked Juror No. 9 to explain the juror's concern about Juror No. 1, and "if there is something you can't say I'll stop you." Juror No. 9 then complained the jury repeatedly had to review the evidence because of Juror No. 1's "lack of comprehension of how to take several pieces [of evidence] together." Juror No. 9 continued: "Juror No. 9: Am I allowed to talk about this? Please just stop me, I guess. One specific thing was we were rewatching the videos, and there was the testimony of Mrs. Gomez, where she had pointed herself out in the videos. And after we rewatched the videos we did like a round table where we just each kind of talked about what we saw in the videos, and how that was relatable to the crimes. And the specific response was something to the effect of 'I just saw a bunch of cars and some people, and I don't understand - I don't get how that all comes together or how that was related.' And we said, 'Well" - one of us said, 'Well, that's Mrs. Gomez right there. She pointed herself out.' And he was like, 'Well, I didn't see her.' And I think a lot of us were - this was after many other issues where it was just - that was very frustrating. Her testimony points to her there in the picture. You can't see her face, but she's approximately the same size, the same gait. We watched her walk to the stand."
The court and Juror No. 8 then discussed Juror No. 1's thought processes and how Juror No. 1 misinterpreted a video capturing part of the incident.
When interviewing Juror No. 6, the trial court asked in-depth questions about the jurors' interactions with each other, and in doing so, also inquired about Juror No. 1's rationale for his position. In questioning Juror No. 6 about why the jurors had to repeat aspects of the evidence multiple times to Juror No. 1, the court asked, "Was it to change his mind on something or was it because he didn't recall something?" Juror No. 6 replied, "To change his mind because we all 11 feel that he's not basing his opinion on anything but his feelings, not on what we were actually presented with." The court then replied, "And what were those feelings that he's basing it on. . . ?" Juror No. 6, replied, "Sympathy. You know, 'He [Sevilla] was nervous, and this could have happened or this could have happened.' And he [Juror No. 1] seems like he's making up other scenarios that don't jive." The court elicited further information about the jury's deliberations when it asked Juror No. 6 if "you have any issues as far as him not following the law?" The juror responded: "Juror No. 6: I think the crux of the matter is intent. Okay? And as we are understanding the law of intent, all these actions that we've been seeing demonstrate intent, but he keeps coming back to the age of the defendants, and, 'Oh, they were just nervous, and I don't think they really intended to do that.'" Similar discussions took place with other jurors.
The trial court's questions to the jurors bear a striking resemblance to those the court asked in Nelson. The Nelson court concluded several of the questions in the trial court's written questionnaire to the jurors undermined the "sanctity of the deliberative process," including asking whether the jurors in question refused to deliberate, and whether they formulated their opinion based on factors other than the evidence and jury instructions. (Nelson, supra, 1 Cal.5th at p. 569.) Here, the court's questions mirror those in Nelson; the court repeatedly asked the other jurors whether Juror No. 1 was following the law, whether he was deliberating, and to reveal their views on whether Juror No. 1 was motivated by his emotions rather than the law.
The Nelson court also observed, "a jury's deliberations must be 'free from outside attempts at intimidation.'" (Nelson, supra, 1 Cal.5th at p. 568.) Here, the court informed Juror No. 1 he was being interviewed because a "single juror" was "unwilling to set aside bias." Juror No. 1 could have no doubt the inquiry concerned him, and the "bias" stemmed from his minority view. In Nelson, the court explicitly told the jurors in open court that the inquiry did not mean, "'anybody has done anything wrong,'" but here the court failed to give the same admonishment. (Nelson, supra, 1 Cal.5th at p. 563.) The respect and deference jurors hold for trial judges makes them particularly susceptible to intimidation or unintended influence, especially when the court explores the complaints a majority of jurors have lodged against a holdout juror.
Based on long-standing precedent, most recently articulated in Nelson, I must conclude the trial court's overall inquiry encroached on the sanctity of the jury's deliberations. In reaching this conclusion, I am not unmindful of the trial court's dilemma. The jurors based their complaint about Juror No. 1's memory and reasoning problems on what occurred during their deliberations, but the law requires the court, in conducting its own inquiry, to avoid intrusively exploring the very deliberations that prompted the complaint. At first blush it would seem the best way to resolve a complaint about a juror's cognitive capacity would be to explore that juror's state of mind. Nevertheless, the tension between preserving the secrecy of jury deliberations and investigating whether good cause exists for dismissing a deliberating juror has been struck in favor of keeping secret the substance of jury deliberations. As the court in United States v. Thomas (2nd Cir. 1997) 116 F.3d 606, observed, "we are compelled to err in favor of the lesser of two evils protecting the secrecy of jury deliberations at the expense of possibly irresponsible juror activity. Achieving a more perfect system for monitoring the conduct of jurors in the intense environment of a jury deliberation room entails an unacceptable breach of the secrecy that is essential to the work of juries in the American system of justice. To open the door to the deliberation room any more widely and provide opportunities for broad-ranging judicial inquisitions into the thought processes of jurors would, in our view, destroy the jury system itself." (Id. at p. 623.)
The majority correctly points out the federal test employed in Thomas for discharging a juror differs from the California test adopted in Cleveland. But Thomas's general observations emphasizing the importance of protecting the secrecy of jury deliberations from intrusive judicial interrogation reflects the same concerns articulated in Nelson.
I do not find persuasive the majority's attempt to distinguish Nelson. The majority points out the trial court in Nelson decided on its own to question the jury because they were deadlocked, but here the trial court responded to complaints by jurors about the reasoning ability of another juror. (Maj. opn. at p. 31.) But the focus in Nelson was whether the trial court's questions invaded and distorted the deliberative process, not what prompted the court's inquiry. The prejudice in Nelson resulted from the intrusive nature of the trial court's questions, not the court's decision to question the jurors. The logical extension of the majority's distinction would relieve them from determining whether the court's inquiry violated a defendant's right to fair and impartial deliberations.
Here, the trial court asked jurors their opinion of Juror No. 1's state of mind and his motivation for not agreeing with the other jurors. The court also asked jurors to discuss the significance of certain issues discussed during deliberations, such as the intent of the defendants and the inferences to be drawn from a video. Evidence Code section 1150 would prohibit this kind of inquiry in a postverdict hearing. (People v. Collins (2010) 49 Cal.4th 175, 250 [questions about "juror opinion, conclusions drawn by others about jurors' states of mind or level of understanding, and the particular significance jurors attached to the evidence at trial . . . were improper intrusions into the subjective reasoning process of the jurors in violation of Evidence Code section 1150"].)
Evidence Code section 1150 provides: "(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. [¶] (b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict." --------
If improper in a postverdict setting, then the same result should apply when those questions are posed during deliberations. "Many of the policy considerations underlying the rule prohibiting postverdict inquiries into the jurors' mental processes apply even more strongly when such inquiries are conducted during deliberations. Jurors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny." (People v. Cleveland, supra, 25 Cal.4th at p. 476.)
The Attorney General contends any error was harmless '[e]ven if the court had asked questions in a less intrusive manner." Rendon and Sevilla contend the court's intrusive inquiry injected structural error into the proceedings. The Nelson court deferred a decision on the structural error claim and applied the Chapman standard, which requires the reviewing court to reverse unless the federal constitutional error was harmless beyond a reasonable doubt. (Nelson, supra, 1 Cal.5th at p. 571; Chapman v. California (1967) 386 U.S. 18, 24.) The standard for reviewing state constitutional errors, which asks "'whether there is a reasonable probability the error affected the verdict,' - parallels the Chapman standard." (Nelson, supra, at p. 571.) Assuming the Chapman standard applies, I cannot say the error was harmless beyond a reasonable doubt.
As Nelson explained, "the federal and state constitutional right to a trial by an impartial jury includes the right to a jury 'in which no member has been improperly influenced'" and maintaining the secrecy of jury deliberation protects the jury's impartiality. (Nelson, supra, 1 Cal.5th at p. 568.) It bears repeating that "'The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations.'" (Engelman, supra, 28 Cal.4th at p. 443.) The court's inquiry in the first phase of juror interviews focused on whether Juror No. 1's minority position amounted to "bias," as many of the majority jurors claimed. The nature of the court's inquiry and its discussion with several jurors, including Juror No. 1, implicitly, though unintentionally, tended to validate the majority's views, and could have suggested a contrary view would be scrutinized by the court and revealed to the parties. The dialogue between the court and the jurors made it far more difficult for any jurors in the majority to change their minds, or to freely discuss any lingering doubts they may have. As Nelson observed in a similar setting, the new deliberations with the alternate "would simply be a matter of the majority convincing . . . the new juror to come to its side." (Nelson, supra, at p. 573.)
Objective evidence often is available to aid a trial court in determining whether a juror committed prejudicial misconduct, but determining whether a juror lacks the cognitive capacity to continue deliberating is a far different matter. Judges are not mental health experts and the temptation for a majority of jurors to rid themselves of a recalcitrant holdout creates the potential for abuse. Nelson favors protecting the secrecy of jury deliberations over a more searching inquiry into the deliberative process. But when the issue is a juror's cognitive ability, further guidance may be helpful for trial courts placed in the same difficult situation the able trial judge faced in this case in conducting the requisite inquiry.
Based on my review of the record I conclude there was more than a remote possibility the trial court's questions impermissibly affected the deliberative process. (Nelson, supra, 1 Cal.5th at p. 571 ["more than a remote possibility" court's questionnaire and follow-up questions distorted deliberations].) Because I cannot say the error was harmless beyond a reasonable doubt, I respectfully dissent.
ARONSON, ACTING P. J.