Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10670
SCOTLAND, P.J.
A jury convicted defendant Dan W. Reynolds of two counts of lewd and lascivious acts upon a child under the age of 14 years and one count of the attempted commission of such an act, and found that defendant committed the offenses against more than one victim. He was sentenced to state prison for an aggregate term of 30 years to life.
On appeal, defendant contends that the trial court deprived him of a fair trial by jury when the court “improperly dismissed Juror No. 4” during jury deliberations and “interrogat[ed] each juror[, thereby] compromis[ing] the secrecy of the jury’s deliberations[ and] permitt[ing] the trial court to direct the course of deliberations . . . .”
For reasons that follow, the court committed prejudicial error in discharging Juror No. 4 after deliberations had begun. Thus, the judgment must be reversed.
FACTS
The jury found that the 52-year-old defendant attempted to kiss a 12-year-old girl on the lips, then kissed her on the cheek, while the girl was in a play room in defendant’s house. The jury found that defendant then committed a lewd and lascivious act on a five-year-old girl, who testified he took her from the play room into his office, told her to take off her pants and underwear, which she did, and then he licked her vaginal area with his tongue. When defendant stopped, he gave the girl a stuffed animal and told her not to tell anyone about what happened.
The girls had gone to defendant’s home with the mother and other relatives of the 12-year-old girl’s friend to pick up another relative who was visiting there. They had just finished swimming at the river. After arriving at defendant’s home, the girls swam in the pool and then played games while the adults drank alcohol.
DISCUSSION
I
In order to address defendant’s claim of error, we must set forth in some detail the facts and circumstances surrounding the court’s decision to excuse Juror No. 4 during jury deliberations.
After more than two days of deliberations, the court received a note from Juror No. 4, the foreman of the jury, stating that the jurors were “hopelessly deadlocked” on all counts.
The court reconvened the matter with defendant, counsel, and the jury present. “In the courtroom, Juror [No.] 12 gave the bailiff a written note to give to the Court[.]” The note stated: “I have a concern about our foreman. Over the last few days the notes he was taking were in his own personal notebook and taken home with him for his self review. Where [sic] we aloud [sic] to do that? Thank you.”
The court excused the jury, spoke with counsel in chambers, then reconvened to question each juror individually “about this matter.” The court began with Juror No. 12, who had submitted the note to the court.
Juror No. 12
The court asked Juror No. 12 how she knew the foreman had taken his notes home. She replied his notebook was different from the court-supplied notebook, she saw him take it when he left, and the foreman had stated that morning that he had gone over his notes and had come to his own conclusion. Juror No. 12 did not know what notes he was talking about.
When asked if she had “any other concerns about the foreman,” Juror No. 12 said, “No, that’s it. That’s the main thing.” Then, in response to the court’s inquiry whether the foreman’s conduct had affected her, Juror No. 12 said it had and added: “[W]hile we’re in there . . . I feel his knowledge of law, we carefully look at the instructions given us, and we keep going back to that. But he comments, or had made comments of his own experience of law or situations to where I personally feel the open[-]mindedness is not there. To look at both sides of the coin, that’s my opinion.” She claimed that other jurors had expressed concerns about the foreman’s conduct and comments, and that the foreman had responded by saying, in Juror No. 12’s words, he “comments to what he feels is right, even though they have, and I have pointed out what the Court has written down instructions [sic]. He has his own frame of mind. He’s been polite about it, but not wavering either way on his own opinion with his legal knowledge.”
When asked whether the foreman’s legal knowledge conflicted with the instructions given by the court, Juror No. 12 replied: “I feel so.”
The court later questioned Juror No. 12 again after Juror No. 5 revealed that during deliberations the foreman talked about a case involving false allegations that preschoolers had made against their teachers. (See Discussion, post.) Juror No. 12, who knew about the case, thought that the foreman brought it up, leaving Juror No. 12 with the impression the foreman believed that children could not tell the truth. When jurors were discussing the credibility of adults and children, the foreman referred to the daycare case as “reveal[ing] his views on it and that was about it.”
Juror No. 11
The court asked Juror No. 11 whether the juror had concerns about the foreman’s conduct or if the juror had “observed or heard anything” “about [the foreman’s] conduct or comments” “that was inconsistent with the Court’s instructions . . . .” Juror No. 11 was “bug[ged]” by that fact the foreman mentioned he “wrote his own notes and was taking them back and forth” and said he had gone over his notes the previous night. The foreman also had “mentioned the law 288A,” “implying something more than what is on the papers that you had given us.” Juror No. 11 continued: “He was referring to his understanding of that law and being beyond, he said, but it says this, and he shot us down because there were three of us, maybe more of us, lot of us saying, but it says this, and two of us read the line underneath that Count Three, and I honestly I think he just poo pooed us, and I don’t think he made a huge comment after that.” Juror No. 11 also stated: “He was looking at the instructions sort of, but adding his own to it without actually telling us what his own was, because we couldn’t get that out of him, but he was not going by strictly going by what that was. He was saying, but that’s not, and then he’d stop, so I just felt like he was road blocking us, you know, and not explaining he was without [sic], and then when he said today, but that’s not 288A, he said, but that’s not 288A, and I’m going, in my mind I’m thinking, but that’s what it that [sic] says right there.” Juror No. 11 had the “impression” the foreman was considering law from a source other than the court’s instructions.
When the jurors were discussing the fear of convicting an innocent person, the foreman brought up a case involving the alleged molestation of preschoolers that ended up being “dismissed” or “came back.” Juror No. 11 had “read that case” but commented to the other jurors they were not supposed to talk about it because it was not relevant. Other jurors said the same thing and “then we started talking right away about something else.”
Juror No. 10
Juror No. 10 said the foreman talked “a lot” about his legal background, telling the other jurors “he knew more than any of us about the law.” Thus, Juror No. 10 “felt like it wasn’t a peer but it was kind of predominant as far as his ability to determine what the law intended here.” Juror No. 10 also stated the foreman took his notes home on Tuesday night “and then the next day kind of recited his research and how he determined that certain things weren’t valid, or his interpretation of all that,” which “seemed to impede . . . progress.” Juror No. 10 stated that in referring to his legal background, the foreman said he had wanted to be a prosecutor.
When asked whether the foreman had been conducting research, Juror No. 10 replied: “I don’t know that he said research done [sic]. I noticed he was jotting down a lot of notes right as we were getting ready to leave, . . . he carried the same folder back in the morning, talked about how he had thought he named general points that don’t agree.” Juror No. 10 also said the foreman had “indicated he mulled it over at home that night, yeah.”
According to Juror No. 10, when the jurors were talking about witness credibility, the foreman brought up a case involving false allegations by children in daycare.
Juror No. 9
Juror No. 9 did not know whether the foreman took his notes home, but said: “He made references about having legal knowledge and made statements that that’s not the way the law works, kind of general statements, nothing really specific.” Juror No. 9 stated the foreman made reference to his legal background “two times” but never pointed to any instruction and said it was wrong.
Juror No. 9 heard no discussions about another case during deliberations, stating a “lot of times in deliberations there would be groups that would split off in discussions, and it may have been if there was something like that said it could have bee[n] during that time, but I personally did not, I don’t recall hearing that.”
Juror No. 8
Juror No. 8 stated the foreman “demanded to be the foreman” and that, as foreman, he made his decision within an hour of beginning deliberations on Tuesday. On Wednesday, the foreman said: “I have four years of law. I am more qualified to make this decision than anybody in this room.” Juror No. 8 did not notice anything unusual concerning note taking, but said that once the foreman made up his mind “there was absolutely nothing anybody was going to say at all that was going to make him think that he had, his opinion was any different, yet he couldn’t express anything to the rest of us to give us any reason to change our opinion.” When asked whether the foreman had expressed the basis for his opinion, Juror No. 8 replied: “No. It’s this vague, well, I have these eight or nine conflicts. Sometimes it’s more than eight or nine conflicts, sometimes it’s five. Earlier today it was 18 of them. Where did 18 come from? But then I can only give you one or two of them verbalized so that [we can] discuss them and maybe come to some consensus one way or another, but can’t express even if it was to write down every single one of those. Here’s your five concerns, let’s discuss them. He can’t give us the five so we can then discuss them. He’s given one or two, and they’ve been the same ones both times. Tried to pin him down, tell us what it is so we can talk about it. We can’t get that.”
Juror No. 8 had heard the foreman bring up a case from the “mid-west” involving “ten children” when “he was being asked for specifics on his thought process and where he was at in his decision making process.” Juror No. 8 had accused the foreman of not being open-minded, and the foreman responded: “Well, I don’t want it to be something like this case.” Juror No. 8 said the foreman had “the exact name of the case and everything,” but Juror No. 8 did not know what it was.
Juror No. 7
Juror No. 7 felt the foreman was “predecisive” and “biased based on formal education” and only the foreman was closed minded from the beginning of deliberations. Juror No. 7, who felt “a little intimidated,” was asked whether the foreman “was trying to force his opinion on you, or was he just sitting there saying, do what you want. I’m stuck with my opinion?” Juror No. 7 responded: “He was just stuck with his opinion. He was just stuck solid, that deep, stuck.”
When asked about the foreman’s influence based on his legal background, Juror No. 7 said: “He basically presented it like he was more qualified, that he had legal background, he was more of an expert, that he was, he kind of had it over the rest of us” and used his education as an “obstacle” to the “complete flow of exchange of ideas and information, and that is what was disturbing because the mind was made up.”
Juror No. 7 heard the foreman bring up a case in which children had lied. In response, the other jurors said the case was not relevant and they did not want to discuss it.
Juror No. 6
Juror No. 6, who did not see the foreman taking notes home, and who found nothing the foreman did to be improper, acknowledged that the foreman spoke of his legal background and experience in interpreting the law. Juror No. 6 noted that although everyone was “very civil,” the deliberations became “a little heated” at one point, “someone said something,” and then the foreman spontaneously commented he was more “qualified to know the law.” Juror No. 6 felt the comment was “not a good thing to say.”
As to whether any juror had mentioned another case involving children, Juror No. 6 stated: “After we concluded deliberations this morning, . . . I had made a comment to one of the jurors that years ago my wife had been on a jury where they reached [an] [i]mpass[e], found information about the defendant later on that would have been helpful to the jury but not allowed to the jury. So, I did make a reference to a case involving a child.” He made the comment after the jurors had “examined this case from, and the evidence from every possible perspective” and were no longer deliberating.
Juror No. 5
Juror No. 5 stated the foreman said “he had had a lot of schooling in criminal, and that he had done very well in his criminal classes, and either it was [an] A, or top of the class.” The foreman talked about a case involving allegations of abuse upon preschoolers by teachers who were found not guilty despite “that the story was collaborated [sic] by preschoolers.” Juror No. 5 “felt like . . . [the foreman] had worked on something and thought the process through, or something, prior to us, and that was at the very beginning he came in kind of like ready with stuff and anxious to be our foreman.” Juror No. 5 noted that the foreman had an extra notepad but that he did not refer to the law outside of the court’s instructions.
Juror No. 3
When asked about the foreman’s reference to his legal knowledge or background, Juror No. 3 said: “It didn’t seem personal enough or intrusive enough that it made a difference, but there were references to, I’m sorry, it’s a little vague to me, but I know there were references made to the fact that he had some background with the law. I really didn’t think it was improper at the time.” Juror No. 3 did not see anyone take notes out of the jury room.
As to who brought up the daycare case, Juror No. 3 stated: “I think, actually I think it was a comment I made that may have triggered it. We were talking about our approach and our thinking on this, and I just made the point that I would rather see a guilty man go free, than an innocent man go to jail, which was kind of just my approach, and someone honest there, at times many people talking guns, somebody did bring up that trial. I think some people first were found guilty at the time were later found to be innocent.”
Juror No. 2
When asked about conduct or comments made by the foreman, Juror No. 2 said the foreman volunteered to be foreman, mentioned his four years of law school, and stated he thought he was the most qualified “to make a decision or to interpret the law.” Juror No. 2 did not recall anyone discussing another case, but did notice that the foreman came and left with his notebook.
Juror No. 2 admitted talking with other jurors about the foreman, commenting: “Everybody says, well one of us isn’t going along with us, kind of holding things up.” “Everybody would just kind of roll their eyes when he [the foreman] was talking, or we’d look at each other. Everybody had one mind except one.” In Juror No. 2’s view, the foreman was a “know it all,” “thinks he’s better than all of us, that he’s kind of high and mighty.”
Juror No. 1
Juror No. 1 did not observe anyone taking notes outside, or bringing notes into, the deliberation room. The foreman mentioned his legal background “[p]robably about twice” and commented that “he knew more about the law than anyone else.” But the comments did not cause any concern to Juror No. 1.
According to Juror No. 1, “different people” had talked about “different cases” “a couple [of] times,” one of which involved “kids get[ting] coached into saying what they say, and then years later it comes out that it was false what they said.” The foreman may have been the one who brought it up.
Juror No. 4 (the foreman)
Prior to questioning the foreman, the court asked whether counsel had any particular questions. Defense counsel had none. The prosecutor wanted the foreman asked about whether “he did . . . make reference to his extensive experience in criminal law” and to his “experience concerning the McMartin preschool case,” among other things.
Juror No. 4 admitted he had two notepads, the court-issued notepad and his personal notepad. During trial, he took notes on the court-issued notepad but not on his personal notepad. He admitted taking the court-issued notepad home but left it in his car. He apologized he did not recall the court’s instruction to leave the court-issued notepad in the deliberation room.
He admitted that he told jurors he completed four years of law school, that he had done very well in criminal law, having “gotten the top grade in the two sections” and “received the AMJUR,” and that he had thought about being a prosecutor but had never done that. He had never practiced criminal law and had no experience with criminal law.
He acknowledged he volunteered to be foreman, and the other jurors “said I would be good to do it because I did have a legal background.”
He said his law school experience came up prior to discussing “the requisite intent to go from . . . battery to the 288 . . . .” He admitted drawing upon his legal experience “only in interpreting . . . intent, putting together the act and the intent to look at the fact that if a possible crime is committed, and then, and the fact that you had to have an abiding conviction that the allegations were true in order to find beyond a reasonable doubt the person, that the defendant was guilty.”
The court asked: “Do you recall my instructing you and asking you during the voir dire to specifically that [sic] you needed to set aside your legal training and abide by my instructions only?” Juror No. 4 responded: “I believe what I referred to here was also in the materials that you handed out to me.”
In voir dire, Juror No. 4 said he was an employer relations analyst and handled union contracts. He graduated from McGeorge Law School, was an attorney, but was not “practicing law now” and had never practiced criminal law. Saying that it “would be very easy” to follow the jury instructions, he stated he understood he could not answer legal questions by other jurors. In responding to questions from defense counsel, Juror No. 4 said that he believed he would make a good juror because he would listen to both sides before making a decision. He agreed both children and adults were capable of misstating the truth. In answering a question from the prosecutor, Juror No. 4 stated it was not the quantity of evidence but the quality of evidence to convict, explaining “you can have someone who is not credible be the only evidence, and that wouldn’t be helpful at all. You can have a number of people who are credible, but the little snippets of information might be very helpful.”
He denied telling other jurors he was more qualified to interpret the law. He did not believe he told other jurors that he was more qualified to interpret the evidence because of his legal background. He stated there was “a great deal of pressure as to [his] particular opinion on the case, and [he] was being attacked by one of the other jurors” and replied he “believed that [he] had ample experience and more experience than she did to be able to make a determination how this case should go.”
He admitted bringing up the “McMartin Preschool” case to point out that “a child isn’t always inherently credible.” He did not “discuss the facts and circumstances and the testimony [or] anything else about the case.”
Juror No. 4 later clarified he had taken notes at trial on the court-issued notepad, which he had taken home, and had taken notes on his personal notepad in the deliberation room about witnesses and exhibits, which he had left in the deliberation room and never took home. He said the particulars of the McMartin case were not discussed, and when he referred to it, he told the jurors it “was a case in which there was a lot of fabrication.”
He continued: “Our discussion was about [the five-year-old girl’s] testimony wasn’t credible. Some people just inherently thought she was a child, reliable.” When the court stated it did not want Juror No. 4 to discuss the deliberation process, only to explain what was discussed about the McMartin case, Juror No. 4 said that it was brought up during discussion of the five-year-old girl’s testimony, that it was a case involving the molestation of preschool children about the same age as that girl, and that the accused were cleared of any wrongdoing.
Argument and Ruling
After a recess, the court and counsel reconvened outside the presence of the jurors. The prosecutor made “a motion to rel[ieve] juror number four . . . for m[is]conduct.”
Defendant’s counsel opposed the motion, asserting: “I don’t think legal cause has been shown. I think what has been established is that there is significant disagreement amongst the jurors, and there has been some attempt to establish legal cause, but I don’t think it’s been met. In any event, my request at this point in time is that the judge declare a mistrial. . . . I think [that] . . . excusing [Juror No. 4] would just be telling the jurors that he is wrong, and whatever position he has taken in the vacuum on the side opposite from him would suck-in any reasonable argument that might be made on behalf of whatever position he has forwarded. [¶] . . . [¶] . . . [P]erhaps we have helped create a situation which would make it impossible for the jury to render a fair and impartial verdict if we substitute in another juror for [Juror No. 4], telling the other jurors that because [he] disagreed with them he was kicked out.”
The prosecutor responded: “[Juror No. 4] would be excused for misconduct. His sticking with his opinion, his asserting his opinion, that’s perfectly legal and valid and appropriate. But him bringing in outside information. One, interpreting the law based upon his legal training, which the court had specifically instructed him not to do. And he does admit to that. He talks about the fact that when looking at the element of intent he is drawing upon his legal training and not necessarily just sticking to the law as provided within the instructions which is contrary to what the Court had told him and also contrary to what he had previously agreed to during the jury selection process. [¶] In addition, him bringing and mentioning the McMartin Preschool case which we know is highly inflammatory case . . . in discussing the child[’]s credibility is inappropriate. . . . My problem with him is that it seems to me that he is not being honest and candid when questioned about any potential misconduct. Seems like he is almost trying to present himself in the best light, and then when confronted with specifics he tells us, no, that was not, in fact, the case. Yeah, we did discuss this, and, in fact, he discusses the particulars of the case that he was instructed not to provide any outside information. And as a former officer of the court he should know better than that. . . . [A]nd interestingly enough some jurors were on to that, and they knew that that was inappropriate that he, as the foreperson, brought this up as a specific way to violate her credibility. That is inappropriate, and that is misconduct.”
The court immediately ruled in pertinent part: “[B]ased on all the evidence I have received from the jurors I do believe there is good cause to excuse [Juror No. 4]. I do not believe excusing him would send a message to the rest of the jurors just because he disagreed. Right now I don’t know what the split is. I don’t know if he’s the only one who disagrees. It seems some jurors, it seems a couple of jurors may not have been privy or even heard or were really affected by anything he said. I don’t think it sends that the basis of his conduct is he kept his position, his right, although some of the jurors did describe him not open to deliberations, a brick wall, including the exchange of discussion, in discussion having his mind made up from the beginning. Although some of the jurors described that, that is not my basis for excusing him. He did take personal notes, and he conceded he did admit that he took the court issued notepad outside of the deliberations room, which is a direct conflict with my very specific instructions to him. However, that . . . is not the basis of my excusing this juror. The most, the two most items of concern, one is his reference to his legal knowledge, and it appears that that was done more than once. Referring to his legal education he admitted that he did state that he had four years of law school, that he had received the AMJUR, the top ten [sic] grades of criminal law, and he did tell the juror that he was more qualified to make the decision than she was. Some of the other jurors stated here that he stated that he was most qualified, or more qualified to interpret the law and evidence, and in light of the fact that he was specifically questioned regarding his ability to set aside any legal training and not put himself out as some sort of legal expert, and not refer to his legal training, I find that a great concern that he did, by his own admission he stated that I believe his words were that he drew upon his legal background, and he also did that specifically in looking at the law, I gave him one of the elements of the crime. In looking at intent he drew upon his legal background. That is in conflict with my instructions to him as well. . . . And even if I did not have that basis the other basis which the Court is relying on, and the Court can rely on is that he spoke regarding this other molestation case, highly inflammatory case, the McMartin Preschool case. Many of the jurors heard it. Several of the jurors told him that that was not appropriate topic for conversation, and that is interjecting extraneous information into this case, which the jurors were specifically instructed not to do. And by his own admission he stated he did so in reaction to the jurors discussing credibility of a witness in this case based on the evidence presented in this case is what he stated. He said they were looking at the video and the transcript in discussing credibility of that witness. He also did say that some of the jurors, it was in response to some of the jurors believing that the children were inherently credible, so he brought up this case. . . . [¶] . . . [Juror No. 5], who first brought to light [the foreman’s] discussion of the case, I found her to be very credible in her tone, in her demeanor in the nature of what she told us. And many, many of the things she told us were actually corroborated by [Juror No. 4] himself. And I also found [Juror No. 7] . . . also very credible in her tone, in her demeanor, in her attitude, and in the nature of specificity of what she related to us. So, I’m prepared to, based on all of that I have, lost faith in [Juror No. 4’s] ability to follow my instructions and deliberate fairly and impartially, so I find there’s good cause to excuse him, and I will bring him in, and I will excuse him.” (Italics added.)
The court then discharged Juror No. 4 and replaced him with the alternate. The court instructed the newly constituted jury to commence deliberations anew.
II
Defendant contends that Juror No. 4 should not have been removed from the jury because it was not established that he had engaged in misconduct, and that the removal of the juror violated defendant’s right to “an uncoerced jury.” He also argues the “interrogation” of jurors by the court improperly intruded upon, and compromised, the jury’s deliberations.
“When a court is informed of allegations which, if prove[d] true, would constitute good cause for a juror’s removal, a hearing is required. . . . [¶] A juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge. . . . Bias may be established by the testimony of other jurors. . . . [¶] A distinction must be made, of course, between a juror who cannot fairly deliberate because of bias and one who, in good faith, disagrees with the others and holds his or her ground. ‘The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and 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, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. . . .’ . . . [¶] Removing a juror is, of course, a serious matter, implicating the constitutional protections [to a jury trial and due process of law]. While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051-1052 (hereafter Barnwell); citations, italics, and fn. omitted.)
“‘[A] trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court’s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists.’ . . .” (Barnwell, supra, 41 Cal.4th at p. 1054; citation omitted.)
A trial court’s decision to remove a juror is reviewed under an abuse of discretion standard and will be upheld only if that juror’s disqualification appears on the record as a demonstrable reality. (People v. Wilson (2008) 43 Cal.4th 1, 26.)
“The demonstrable reality test entails a more comprehensive and less deferential review [than the substantial evidence test]. [The demonstrable reality test] requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that 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.” (Barnwell, supra, 41 Cal.4th at pp. 1052-1053, original italics.)
We consider the evidence on which the trial court relied, and the trial court’s express statement of reasons, affording deference to the trial court’s credibility determinations. (Barnwell, supra, 41 Cal.4th at p. 1053.)
Here, the trial court began the process of questioning the jurors after the foreman indicated that the jury was deadlocked following more than two days of deliberations. Before the court could inquire as to whether the jury was actually deadlocked and hopelessly so, Juror No. 12 sent a note to the court complaining that Juror No. 4 had taken his notes home to review.
However, the court did not limit its inquiry of Juror No. 12 to whether the foreman, Juror No. 4, took his juror notes home; the court also asked whether Juror No. 12 had “any other concerns about the foreman.” The inquiry then snowballed, covering 48 pages of the reporter’s transcript and delving into the content of the deliberations and jurors’ thought processes. Thus, the questioning exceeded the limited scope allowed during an inquiry into possible grounds for discharge of a deliberating juror. (Barnwell, supra, 41 Cal.4th at p. 1054.)
The justification for the inquiry was to determine whether Juror No. 4 had taken his notes home for his review. Ultimately, Juror No. 4 admitted he had taken the notepad from the court, said he left it in his car, and apologized for not recalling the judge’s instruction to leave the notepad at the court. However, the court explicitly found this was not a basis to remove Juror No. 4 from the jury, thus impliedly finding that his action in this regard was not misconduct and did not demonstrate bias.
Instead, the court found Juror No. 4 was unable to perform the duty to fairly deliberate because (1) he had relied upon his legal background and referred to his legal knowledge, telling one female juror he was more qualified to make the decision than she, and some of the other jurors recounting he stated he was more qualified to interpret the law and evidence, which conflicted with the court’s instruction not to “put himself out as some sort of legal expert, and not [to] refer to his legal training,” and (2) he referred to the McMartin preschool case, a “highly inflammatory” case, “interjecting extraneous information” into the case at hand, which was in conflict with the jury instructions.
The record does not support the court’s ruling. As will be explained below, nothing established that Juror No. 4 was biased, was relying on evidence other than what was introduced at trial, was not applying the law as instructed by the court, or was refusing to fairly deliberate. At most, the inquiry revealed a good faith disagreement with the other jurors.
The court found that (1) by referring to his legal education and suggesting he was more qualified than other jurors to interpret the law, Juror No. 4 violated the court’s admonition to him during voir dire that, in the words of the court’s ruling, he “set aside any legal training and not put himself out as some sort of legal expert,” and (2) he in fact did “dr[a]w upon his legal background” when “looking at [the law of] intent . . . .”
During voir dire, the court did not admonish Juror No. 4 that he could not draw on his legal education and experience in deciding this case. After Juror No. 4 said that he was an attorney but was not “practicing law now,” the court simply asked: “If I would be giving you instructions, rules at the close of this case, and if they conflict with anything you may have learned in law school or remember from law school, then can you assure me that you will follow my instructions?” Juror No. 4 replied: “Well, that would be very easy, yes.” The court then asked: “You also understand if you were selected, if other jurors look to you, ask you legal questions, you cannot answer those questions?” Juror No. 4 replied: “I understand that.”
The later inquiry of jurors did not suggest that any of the other jurors asked for Juror No. 4’s legal advice. And the inquiry does not indicate that Juror No. 4 refused to follow the court’s instructions to the jurors regarding the law of the case and their role as the triers of fact. Juror No. 4 acknowledged he drew upon his legal experience “in interpreting I think the intent, putting together the act and the intent to look at the fact that if a possible crime is committed . . . and the fact that [a juror] had to have an abiding conviction that the allegations were true in order to find beyond a reasonable doubt the person, that the defendant was guilty.” However, this comment does not support a conclusion that Juror No. 4 refused to apply the law as instructed by the judge. That Juror No. 4 emphasized his legal experience when, during what appears to have been a heated disagreement of opinion, he told one juror that he was more qualified to make the decision than she was, and indicated to other jurors that he was more qualified to interpret the law and evidence, does not reflect he was refusing to follow the court’s jury instructions. At most, Juror No. 4 was simply defending his position when it appeared he was the lone holdout juror.
“‘Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them.’” (Beck v. Alabama (1980) 447 U.S. 625, 642 [65 L.Ed.2d 392, 406].) Jurors apply their own general knowledge and ideas to judge the weight and force of the facts in evidence. (Head v. Hargrave (1882) 105 U.S. 45, 47-48, 49-50 [26 L.Ed. 1028, 1029, 1030]; People v. Fauber (1992) 2 Cal.4th 792, 838-839 [jurors relied on personal experience with drug and alcohol use and its effect on the ability to recall]; see also Price v. Kramer (9th Cir. 2000) 200 F.3d 1237, 1240, 1254-1255 [jurors’ discussion of prior personal experience with police involving minor incidents].)
Thus, “[i]t is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work.” (In re Malone (1996) 12 Cal.4th 935, 963 (hereafter Malone).)
The People note Malone went on to say a juror “should not discuss an opinion explicitly based on specialized information obtained from outside sources” and “[s]uch injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (Malone, supra, 12 Cal.4th at p. 963.) But the People do not include the first sentence preceding the statement of the rule, in which the Supreme Court placed it in context: “It will be recalled that during deliberations [the] Jury Forewoman . . . expressed negative opinions on the reliability of petitioner’s polygraph evidence, based on her own professional study of psychology.” (Ibid.) And the People omit the Supreme Court’s conclusion. Finding the forewoman’s comments were consistent with the evidence and arguments presented at trial, Malone rejected a claim she improperly relied on her professional expertise in commenting on the reliability of the polygraph evidence. (Id. at pp. 964-965.)
Here, Juror No. 4 referred to his legal experience only when interpreting the legal requirement of intent, which he described as “putting together the act and the intent” to determine a juror could “find beyond a reasonable doubt . . . that the defendant was guilty.” His comment reflects he was applying the court’s instructions on the union of the act and intent with respect to the elements of a lewd and lascivious act upon a child under the age of 14 and the elements of simple battery (see People v. Martinez (1995) 11 Cal.4th 434, 450) and the burden of proof beyond a reasonable doubt. Thus, the court erred in concluding that Juror No. 4’s reliance on his legal experience reliably demonstrated that he was disqualified to continue to serve on the jury. (See People v. Wilson, supra, 43 Cal.4th at p. 26; Barnwell, supra, 41 Cal.4th at pp. 1052-1054.)
The court also found that Juror No. 4’s comments about the McMartin preschool case disqualified him for serving on the jury. Not so.
Aspects of the McMartin case were widely publicized in the 1980’s through articles and books (e.g., Paul and Shirley Eberle, The Abuse of Innocence: The McMartin Preschool Trial (1993)) as well as an HBO “docudrama” in 1995 (Indictment: The McMartin Trial), and the ensuing defamation lawsuit by one teacher after the case led to no convictions. An alleged victim even recanted in 2005, saying he had lied to please his interviewers. Thus, it is not surprising that jurors in this case were aware of the McMartin matter.
Juror No. 4 commented on the McMartin case as an example that an accusation of sexual abuse is not necessarily credible simply because the complainant is a child. The record shows that he did not recount the exact nature of the alleged abuse reported by preschoolers in that case (sexual abuse and bizarre satanic rituals); thus, his comments were not inflammatory.
A juror’s injection of extraneous law (not given by the court in its instructions to the jury) constitutes juror misconduct. (People v. Marshall (1990) 50 Cal.3d 907, 949-950 [juror with law enforcement background erroneously told jurors that juvenile records are automatically sealed at 18 years of age]; In re Stankewitz (1985) 40 Cal.3d 391, 396, 399-400 [juror who was a veteran police officer, and claimed he knew the law, made an erroneous statement of law contradicting the jury instructions].)
However, a juror’s “introduction of much of what might strictly be labeled ‘extraneous law’ cannot be deemed misconduct. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. ‘[It] is an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized and freed from any external factors.’ [Citation.]” (People v. Marshall, supra, 50 Cal.3d at p. 950.)
Accordingly, Juror No. 4’s reference to the McMartin case was not the type of conduct that disqualified him from continuing to serve on the jury.
In sum, the record does not establish a demonstrable reality that Juror No. 4 was biased, was relying on evidence other than what was introduced at trial, was not applying the law as instructed by the court, or was refusing to fairly deliberate. As California’s Supreme Court has pointed out: “‘The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and 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, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.’” (Barnwell, supra, 41 Cal.4th at p. 1051.)
Accordingly, the trial court erred in discharging Juror No. 4, and defendant is entitled to a new trial.
DISPOSITION
The judgment is reversed.
ROBIE, J.
I concur, but write separately to emphasize why the evidence of Juror No. 4’s “reference to his legal knowledge” did not justify his removal from the jury.
A trial court may discharge a juror who is unable to perform his or her duty (Pen. Code, § 1089); however, “[t]he juror’s inability to perform must appear as a ‘demonstrable reality’ and will not be presumed” (People v. Lucas (1995) 12 Cal.4th 415, 489). “The demonstrable reality test . . . requires a showing that the [trial] court as trier of fact . . . rel[ied] on evidence that, in light of the entire record, supports its conclusion that [cause for discharge] was established. . . . Under the demonstrable reality standard, . . . the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053.)
Here, a careful review of the record demonstrates that none of the evidence on which the trial court actually reliedrelating to Juror No. 4’s “reference to his legal knowledge” showed as a demonstrable reality that he could not perform his duty because (as the trial court concluded) he was unable “to follow [the court’s] instructions and deliberate fairly and impartially.”
For the purpose of analysis, the evidence on which the trial court actually relied relating to Juror No. 4’s “legal knowledge” logically falls into two categories: (1) evidence of Juror No. 4’s assertions to other jurors relating to his legal background; and (2) evidence that Juror No. 4 drew on his legal background in looking at the issue of intent. As will be seen, none of this evidence justified the conclusion that Juror No. 4 could not perform his duty.
Evidence Of Juror No. 4’s Assertions Relating To His Legal Background
The evidence of Juror No. 4’s assertions to other jurors relating to his legal background on which the trial court actually relied came from two sources -- Juror No. 4 himself and other jurors. As the trial court pointed out, Juror No. 4 admitted he told the other jurors “he had four years of law school, [and] had received the AMJUR[ and] the top ten grades in criminal law.” He also admitted he told one of the other jurors “that he was more qualified to make the decision than she was.” As the court observed, these admissions were corroborated by statements by “[s]ome of the other jurors . . . that [Juror No. 4] stated that he was most qualified, or more qualified to interpret the law and evidence.”
Actually, with regard to his grade in criminal law, Juror No. 4 admitted telling the other jurors that he “had gotten the top grade in the two sections.”
Juror No. 10 said that Juror No. 4 “talked a lot about his law background, at times told us he knew more than any of us about the law.” Juror No. 8 said that his “specific comment was, I have four years of law. I am more qualified to make this decision than anybody in this room.” Juror No. 7 asserted that Juror No. 4 had stated he “had more knowledge in this area and was therefore better equipped to make a decision that would have the outcome that was preferred.” Juror No. 6 said he told them “he had some legal knowledge and had probably more experience, you know, in deliberations process, some reference to law, probably had more experience than other people probably did.” Juror No. 6 then clarified that Juror No. 4 was talking about “interpreting law.”
While the foregoing evidence unquestionably supported the fact that Juror No. 4 (perhaps improvidently) touted his legal background and used it to assert his own superiority over the other jurors, his actions in this regard were not misconduct nor did they reasonably show that he could not follow the court’s instructions and deliberate fairly and impartially. As the People rightfully assert, the “willful injection of extraneous legal principles” into jury deliberations is misconduct. (People v. Marshall (1990) 50 Cal.3d 907, 949-950; see also In re Stankewitz (1985) 40 Cal.3d 391, 399-400.) Moreover, “‘[A] juror’s serious and willful misconduct is good cause to believe that the juror will not be able to perform his or her duty.’” (People v. Ledesma (2006) 39 Cal.4th 641, 743, quoting People v. Daniels (1991) 52 Cal.3d 815, 864.) However, merely by bragging to his fellow jurors that he attended and performed well in law school, Juror No. 4 did not inject any extraneous legal principles into the case (or commit any other sort of misconduct for that matter). The same is true of Juror No. 4’s assertions of superiority over other jurors based on his legal background. The assertion of superiority, however founded or unfounded, is not misconduct and not a ground for discharge.
This case is not like Marshall, where one of the jurors, who claimed a background in law enforcement, injected extraneous law into the deliberations by telling the other jurors (erroneously) that “‘juvenile records are automatically sealed at 18 years of age.’” (People v. Marshall, supra, 50 Cal.3d at p. 949.) It is also not like Stankewitz, where one of the jurors, who had been a police officer for over 20 years, injected extraneous law into the deliberations by telling the other jurors (erroneously) that “the law provides a robbery takes place as soon as a person forcibly takes personal property from another person, whether or not he intends to keep it.” (In re Stankewitz, supra, 40 Cal.3d at p. 396.) In both of those cases, it was not the juror’s self-proclaimed expertise in the law, but the juror’s injection into the case of specific legal principles beyond those set forth in the jury instructions that constituted misconduct. Here, Juror No. 4 did not inject any extraneous law into the case merely by touting his legal background and asserting his superiority over the other jurors based on that background.
Evidence That Juror No. 4 Drew On His Legal Background
That leaves only the trial court’s finding that Juror No. 4 “drew upon his legal background . . . [i]n looking at intent,” which the trial court based solely on testimony from Juror No. 4, and which the court found was “in conflict” with its instructions. All that Juror No. 4 admitted, however, was “draw[ing] on [his] legal experience” “in interpreting . . . the intent, putting together the act and the intent to look at the fact that if a possible crime is committed, and then, and the fact that you had to have an abiding conviction that the allegations were true in order to find beyond a reasonable doubt the person, that the defendant was guilty.” When asked if he recalled that he was told he “needed to set aside [his] legal training and abide by [the court’s] instructions only,” Juror No. 4 responded, “I believe what I referred to here was also in the materials that you handed out to me.”
The foregoing testimony of Juror No. 4 -- which was the only testimony on which the trial court actually relied in finding he “drew upon his legal background” -- does not reasonably support the trial court’s implicit conclusion that he disregarded the court’s instruction to set aside his legal training and was instead drawing on his “legal experience” for extraneous legal principles relating to the issue of intent. Rather, the testimony supports the conclusion that to the extent he was drawing on his legal experience for legal principles, those legal principles were not extraneous but instead were entirely consistent with the court’s instructions on the union of act and intent and on the standard of proof beyond a reasonable doubt.
Because I cannot say that I am confident the trial court’s conclusion regarding Juror No. 4’s inability to perform his duty is manifestly supported by the evidence on which the court actually relied, I must conclude the demonstrable reality test has not been met, and therefore reversal is required.
DISSENTING OPINION
SIMS, J.
I respectfully dissent.
In my view, the trial court did not err in excusing Juror No. 4.
The trial court may discharge a juror who, upon good cause shown to the court, is found to be unable to perform his duty. (Pen. Code, § 1089 (section 1089).) A juror may be discharged under this statute for juror misconduct. (People v. Daniels (1991) 52 Cal.3d 815, 865-866.) A juror who refuses to follow the court’s instructions is “unable to perform his . . . duty” within the meaning of section 1089. (People v. Williams (2001) 25 Cal.4th 441, 448.) Jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. (People v. Wilson (2008) 43 Cal.4th 1, 26-27.) Jurors unable to do so are subject to discharge. (Ibid.)
“Although we have previously indicated that a trial court’s decision to remove a juror pursuant to section 1089 is reviewed on appeal for abuse of discretion (see, e.g., People v. Leonard, [2007] 40 Cal.4th [1370,] 1409), we have since clarified that a somewhat stronger showing than what is ordinarily implied by that standard of review is required. Thus, a juror’s inability to perform as a juror must be shown as a ‘demonstrable reality’ (People v. Cleveland (2001) 25 Cal.4th 466, 474), which requires a ‘stronger evidentiary showing than mere substantial evidence’ (id. at p. 488 (conc. opn. of Werdegar, J.)). As we recently explained in People v. Barnwell (2007) 41 Cal.4th 1038, 1052: ‘To dispel any lingering uncertainty, we explicitly hold that the more stringent demonstrable reality standard is to be applied in review of juror removal cases. That heightened standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury.’” (People v. Wilson (2008) 44 Cal.4th 758, 821 .) The “demonstrable reality” test requires a showing that the court as trier of fact relied on evidence that, in light of the entire record, supports its conclusion that disqualification was established. (People v. Wilson, supra, 43 Cal.4th at p. 26.) We consider not just the evidence itself, but also the record of reasons the trial court provided. (Ibid.) We will not reweigh the evidence. (Ibid.)
Here, the evidence showed misconduct as a “demonstrable reality” because Juror No. 4 engaged in misconduct by asserting his expert knowledge as an attorney and by trying to influence the jury with his legal expertise.
“It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct. [Citations.]” (In re Malone (1996) 12 Cal.4th 935, 963.)
“When extraneous law enters a jury room--i.e., a statement of law not given to the jury in the instructions of the court-- the defendant is denied his constitutional right to a fair trial unless the People can prove that no actual prejudice resulted. [Citations.]” (In re Stankewitz (1985) 40 Cal.3d 391, 397; see People v. Wilson, supra, 44 Cal.4th at p. 829.) In Stankewitz, the Supreme Court issued a writ of habeas corpus due to juror declarations obtained during the appeal, indicating one juror told the others during deliberations that he had been a police officer for over 20 years; that as a police officer he knew the law; that the law provides a robbery takes place as soon as a person forcibly takes personal property from another person regardless whether he intends to keep it; and that the defendant committed robbery as soon as he took the victims’ wallets at gunpoint regardless whether he intended to keep them. (Id. at p. 396.) The juror committed misconduct by “‘consult[ing] his own outside experience as a police officer on a question of law. Worse, the legal advice he gave himself was totally wrong . . . [and] he did not keep his erroneous advice to himself; rather, vouching for its correctness on the strength of his long service as a police officer, he stated it again and again to his fellow jurors and thus committed overt misconduct.” (Id. at pp. 399-400, fn. omitted.)
In People v. Marshall (1990) 50 Cal.3d 907, the California Supreme Court found misconduct (though not prejudicial) where a juror told other jurors he had a background in law enforcement and gave his interpretation of the law, which was extraneous and erroneous. (Id. at pp. 949-951 [juror said during penalty deliberations of capital case that the lack of evidence of prior criminal record did not mean the defendant had no criminal background, because juvenile records are automatically sealed at age 18].)
In light of the entire record, the evidence supports the trial court’s decision.
Here, Juror No. 4 consulted his own outside legal experience on a critical question of law, i.e., intent. He insinuated to his fellow jurors that his legal expertise gave him an inside track to justice that was not apparent in the jury instructions. Additionally, he injected external legal information by referencing the McMartin preschool case. (McMartin v. Children’s Institute Internat’l. (1989) 212 Cal.App.3d 1393.) Although the preschool case was widely reported by the mainstream media, Juror No. 4 sought to imbue his citation of the case (as he sought to imbue all his comments) with a specialized legal knowledge beyond the ken of lay jurors relying on the instructions given by the court.
The trial court specifically stated it relied on the statements of Jurors Nos. 5 and 7. Juror No. 5 said Juror No. 4 had been “anxious to be our foreman” and spoke during deliberations about the preschool case and his own superior performance in criminal law classes at law school. Juror No. 5 said, “I don’t have the knowledge except for what you guys gave us on the law, and [Juror No. 4] had an understanding of the law, and he told us, he goes I think I understand the law better than anyone else in the room.” When the court asked if Juror No. 4 made reference to any law outside of the instructions, Juror No. 5 said he did not recall any in particular, but Juror No. 4 kept a separate notepad other than the one issued by the court. Juror No. 7 said Juror No. 4 presented his views from the perspective that his legal education made him more qualified than the other jurors, and he was a legal expert.
According to Juror No. 8, Juror No. 4 “demanded to be the foreman.” According to Juror No. 8, Juror No. 4 said, “I have four years of law. I am more qualified to make this decision than anybody in this room.” This sentiment was echoed by Juror No. 10, who said that Juror No. 4 “talked a lot” about his legal background telling the other jurors, “he knew more than any of us about the law.”
This asserted expertise by Juror No. 4 is combined with evidence that Juror No. 4 gave other jurors advice as to the applicable law that was at odds with the court’s jury instructions. Thus, Juror No. 12 said, “I feel his knowledge of law, we carefully look at the instructions given us, and we keep going back to that. But he comments, or had made comments of his own experience of law or situations to where I personally feel the open mindedness is not there.” Juror No. 12 continued, that Juror No. 4 “comments to what he feels is right, even though they have and I pointed out what the Court has written down instructions [sic] He has his own frame of mind.” Thus, when asked whether the foreman’s legal knowledge conflicted with the instructions given by the court, Juror No. 12 replied: “I feel so.”
Similarly, Juror No. 11 said, with respect to Juror No. 4, “He was referring to his understanding of law and being beyond, he said, but it says this, and he shot us down because [some jurors said] but it says this, and two of us read the line underneath that Count Three, and I honestly I think he just poo pooed us, and I don’t think he made a huge comment after that.” “He was looking at the instructions sort of, but adding his own to it without actually telling us what his own was, because we couldn’t get that out of him, but he was not going by strictly going by [sic] what that was. He was saying, but that’s not, and then he’d stop, so I just felt like he was road blocking us, you know, and not explaining he was without [sic] and then when he said today, but that’s not 288A, he said but that’s not 288A, and I’m going, in my mind I’m thinking, [sic] says right there.”
Juror No. 10 said Juror No. 4 “talked a lot about his law background, at times told us he knew more than any of us about the law.”
Juror No. 9 said Juror No. 4 “made references about having legal knowledge and made statements that that’s not the way the law works, kind of general statements, nothing really specific.”
Jurors Nos. 6, 2, and 1, also said Juror No. 4 stated he had legal knowledge and experience and was more qualified than the other jurors to know the law.
Several jurors testified Juror No. 4 brought up the unrelated case where children were coached into making false statements, but some jurors admonished they were not supposed to talk about outside cases.
In my view the record strongly supports the conclusion (as a “demonstrable reality”) that Juror No. 4 (the foreman) asserted a superior knowledge of the law and was giving other jurors expert advice as to the meaning of the jury instructions. At least one juror testified that the foreman’s legal advice was at odds with the jury instructions. Accordingly, I would find that the trial court properly excused Juror No. 4 for misconduct in improperly asserting expert views in the jury room. (In re Stankewitz, supra, 40 Cal.3d at pp. 399-404.)
This much is clear to me:
We know from Juror No. 4’s reference to the McMartin preschool case that Juror No. 4 probably favored the defense. This is so because it has been alleged that the investigation of child abuse in that case was conducted improperly. (See McMartin v. Children’s Institute Internat’l., supra, 212 Cal.App.3d at pp. 1398-1399.) But what if Juror No. 4, the jury foreman, had favored the prosecution and had injected his personal legal expertise into jury deliberations to the same extent that he did here? I think we would reverse any resulting conviction in a heartbeat. And I think the same standard of juror neutrality should apply regardless of whether a juror favors the prosecution or the defense.
Defendant also contends that the trial court erred in examining the jurors in the way that the trial court did. However, I find nothing improper in the trial court’s examination of the jurors.
I would affirm the judgment.