People
v.
Burns

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICTNov 6, 2018
H043959 (Cal. Ct. App. Nov. 6, 2018)

H043959

11-06-2018

THE PEOPLE, Plaintiff and Respondent, v. STEVEN BURNS, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1354178)

I. INTRODUCTION

Defendant Steven Burns was convicted after jury trial of second degree murder (Pen. Code, § 187) and unlawful mutilation of human remains (Health & Saf. Code, § 7052). The jury also found true the allegation that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the murder (§ 12022, subd. (b)(1)). The trial court sentenced defendant to prison for the indeterminate term of 15 years to life consecutive to the determinate term of three years.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends: (1) his conviction for unlawful mutilation of human remains (Health & Saf. Code, § 7052) must be reversed because there is insufficient evidence he started the fire that burned the victim's body; (2) the trial court erred when it instructed the jury with CALCRIM No. 505, regarding self-defense in homicide cases, because the instruction misstates the law; and (3) the trial court erred by discharging a juror during deliberations.

For reasons that we will explain, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by information with the murder of Domingo Ramirez (§ 187; count 1) and unlawful mutilation of human remains (Health & Saf. Code, § 7052). The information further alleged that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the murder (§ 12022, subd. (b)(1)).

The prosecution's theory of the case was that defendant, who had recently met Ramirez while the two were homeless, committed first degree murder by stabbing Ramirez to death, and that defendant was involved in the burning of Ramirez's body to get rid of the evidence. The defense theory of the case was that defendant stabbed Ramirez in self-defense, that defendant's friend started the fire that burned Ramirez's body, and that defendant told the police he started the fire only because he was trying to take the blame for his friend.

A. The Prosecution's Case-in-Chief

1. The April 9, 2013 fire and the discovery of Ramirez's body

On April 9, 2013, shortly after 9:00 p.m., a law enforcement officer who was near State Route 85 saw "the beginning of a fire" on the other side of the highway near the Cottle Road onramp to northbound State Route 85. The officer radioed in the fire, blocked the onramp, and set up traffic control.

Although the fire department responded very quickly, the trees along the highway sound wall became engulfed in flames. As the fire department put water on the fire, a homeless encampment was discovered. A mattress was on fire, and there appeared to be tent poles "somewhat standing up." The mattress was completely burned with only metal remaining. A body was on top of the mattress, and the victim was later determined to be Ramirez.

2. The discarding of evidence prior to the fire

Defendant was homeless and moved around to different places. He had been dating his girlfriend, Melissa Gardner, for a few months. Gardner lived with her parents, worked, and went to school. To stay in contact, defendant would call Gardner from a pay phone or a friend's phone. They saw each other every day. Gardner gave defendant money, food, and cigarettes, and she let him borrow her car.

Gardner would drop off defendant wherever he was staying for the night. In April 2013, she had been dropping him off near State Route 85 and Cottle Road. Defendant's friend, Pablo Rubalcaba, lived nearby. Rubalcaba was in his mid-twenties and had known defendant since high school. Defendant would stop by Rubalcaba's house to chat, smoke a cigarette, and sometimes use Rubalcaba's cell phone. At times, defendant appeared to be under the influence of methamphetamine.

On April 7, 2013, two nights before the fire, around 9:00 or 10:00 p.m., Gardner dropped off defendant. The next morning, on April 8, 2013, around 5:00 or 5:30 a.m., defendant went to Rubalcaba's house and used his phone to call Gardner. Rubalcaba testified that defendant appeared to be under the influence, and he seemed frantic, panicky, and nervous. Defendant asked Gardner to pick him up.

When Gardner picked up defendant, he seemed somber, frightened, and nervous. She saw blood on the knee of his pants. He also smelled like alcohol, which made Gardner angry because defendant had said he was going to quit drinking. At some point, Gardner took defendant to an area near Cottle Road. Defendant was gone from the car for a few minutes before returning with items in two plastic garbage bags. They went to a dumpster near a restaurant where defendant discarded the garbage bags. He also discarded additional items in another dumpster in Cupertino.

The next day, on April 9, 2013, the day of the fire, Gardner went to class and to work while defendant stayed in the car. When she came out for a break from work, she saw defendant's friend, Chris James, in the car. Defendant and James appeared intoxicated from alcohol. When she returned to her car after work, defendant and James were still in the car. Eventually defendant and Gardner separated from James before meeting with him later when it was dark outside. Gardner dropped off defendant and James at or near Rubalcaba's house. Defendant and James took shovels with them.

Gardner initially testified at trial that, after dropping off defendant and James, she waited in the car on another street for about 15 or 30 minutes. She admitted that she previously told the police that she waited about an hour. She also previously testified at the October 2013 preliminary examination that she waited for about an hour. When asked about her prior statement to the police, she testified at trial that she remembered waiting for about an hour.

Gardner received a call from another of defendant's friends to pick up defendant and James. She went to an area near Cottle Road, and James got into the car. Gardner did not pick up defendant until later. Gardner initially testified that it was another 30 minutes, but possibly sooner, before defendant got into the car. Gardner admitted that she testified at the preliminary examination that it was about 30 minutes. Defendant appeared angry, and he argued with James.

Minutes after defendant got into the car, Gardner saw a fire by the Cottle Road onramp to the highway. She subsequently heard sirens and saw flashing lights. James told her that he had "lit" the fire. James appeared angry, somewhat somber, and "kind of shocked." Gardner testified that the argument between James and defendant led her to believe that defendant was angry about James starting the fire.

3. The investigation

A county medical examiner testified that the victim, Ramirez, was 55 years old. The cause of death was multiple stab wounds. Ramirez had at least 13 stab wounds, including to the head, neck, back, arm, and thigh.

The wound to Ramirez's thigh perforated the limb. The entry wound appeared to be on the inside of the top of his left thigh. The wound went through the muscle, a major artery, the muscle below the artery, and then out the back of his upper left thigh, near the buttock. Because the wound went through a major artery, it would have been "quickly fatal." A healthy person would lose consciousness within a matter of minutes due to the low supply of blood in the brain, and it would take up to five minutes without oxygen or blood flow for the brain to die.

The wound to Ramirez's head went through the skull and into the membrane that surrounds the brain. The knife tip had broken off in the skull. The head wound would not have been immediately fatal but would have led to death without medical care.

One wound penetrated Ramirez's lung, but he was already "near death" by that time. There were three stab wounds to Ramirez's back.

The county medical examiner testified that the position of the victim and the assailant cannot be determined from a stab wound. The most that can be said is that the stab wound is on a portion of the body that was exposed to the assailant. The county medical examiner testified that it was impossible to determine the exact order in which each wound was inflicted.

Ramirez sustained burn injuries after he died. His skin was gone except for some patches, and black charred muscle and subcutaneous tissue was exposed. Ramirez had methamphetamine in his system.

An arson investigator from the San Jose Fire Department investigated the scene of the fire and prepared a report, but she was unavailable to testify at trial. Christopher Murphy, the arson investigator's supervisor and the captain of the fire department's arson unit, testified at trial instead. Captain Murphy reviewed photographs of the scene and the report by the arson investigator. Captain Murphy testified as an expert in arson investigation and identifying the cause and manner of fires.

The fire occurred near the highway by a homeless encampment. The fire started at or by a mattress where the victim was found, and the fire spread into vegetation. The area had tall grass, shrub, and redwood trees. Some of the natural materials in the area were easily combustible.

Captain Murphy concluded that the cause of the fire was an open flame device, such as a lighter or a match, that was applied to a combustible. He explained that holding a match to an object, such as charcoal or logs, may not ignite the object and sustain a fire. He believed the fire in this case was aided by either additional combustibles, which may have been available at the scene, or a liquid accelerant, which caused the fire to burn and caused the damage to the body. No odor of gasoline or other accelerant was detected at the scene. Accelerants include petroleum products, as well as kindling, which may be small pieces of wood or newspaper.

Captain Murphy explained that the condition of the body suggested the body had been exposed to either sustained heat for an extended period, or very intense heat for a shorter period, in order to cause the physical effects that were observed, including splitting of the skin and exposure of the underlying fat tissue. He stated that this condition "typically does not occur in under ten minutes or so of an intense fire, or longer for a low intensity fire." In his experience, "the body of a human being in light clothing is not going to sustain a fire absent some materials around them that are also on fire for a long period of time to cause that kind of damage." Captain Murphy testified that he had "a highness of suspicion that there was something used to accelerate the fire to keep it sustainable for a period of time to cause that kind of damage to the body." He had never seen a fire cause that type of damage without other burning materials.

Captain Murphy did not believe the fire was the result of a person lighting a match, throwing it, and then walking away. He explained that a match tends to go out on its own. Likewise, holding a lighter to a person's clothing would likely burn and char the clothing and may start a small fire, but once the heat source was removed the fire would likely self-extinguish after a period. However, if a match landed on the "proper type of fuels," such as a petroleum-based accelerant, or "flashy fuels, pine needles, light grasses, that type of thing," then that could "possibly generate a fire." The materials would need to be on the body, or on the mattress right next to the body, and not merely on the ground around the mattress.

On the night after the fire, around midnight, the police determined the location of Gardner's cell phone through the cell phone company. The police found defendant and Gardner in her car. Defendant was arrested, and both he and Gardner were interviewed by the police. The police did not observe any injury on defendant other than a little scab on his thumb.

On April 11, 2013, Gardner took the police to two dumpsters where defendant had discarded items. There were items in the dumpster in Cupertino, but the other dumpster was empty. The items recovered by the police included a blood-stained tent and poles, blood-stained blankets, and blood-stained sleeping bags.

By the time of defendant's trial in February 2016, Gardner had entered a plea to being an accessory after the fact, based on her helping defendant throw away items. She agreed to cooperate in the prosecution of defendant, and she was to be sentenced after testifying in defendant's case.

B. The Defense Case

1. The stabbing and the fire

Defendant testified in his own defense. In April of 2013, he was 25 years old and homeless. Defendant slept in a tent, which he carried with other camping gear that he needed.

Defendant "had been pretty much shut out of [his] family." He moved in with his grandmother for a period because his parents had a problem with his drug use, which involved smoking marijuana. His grandmother eventually moved away, but his uncle continued to live in the grandmother's house in San Jose. Defendant showered at the uncle's house and obtained money for food by working for family and friends. Gardner, who was also 25 years old, provided food to defendant.

Defendant was an alcoholic. Once he started drinking, he usually did not stop. He "tended to get in trouble when [he] drank a lot," meaning more than 18 beers, and his trouble included being drunk in public and getting into fights. Defendant testified that, prior to the incident, he had been "clean and sober" for three months.

Defendant preferred to camp in secluded areas instead of a big homeless camp. He was familiar with the Cottle Road area, and he camped in that general area "pretty much all the time." His uncle and friends lived in the neighborhood within walking distance.

Defendant testified to the following events. He camped at the location off Cottle Road and State Route 85 three times leading up to the incident. On the first night, he was in his tent when he heard a cough. He went outside but did not see anyone, so he went to bed. The next morning, he packed up his tent and left.

Defendant spent the next night with Gardner, and then he returned to the location off Cottle Road for a second night. After falling asleep, defendant was awoken by Ramirez, who told defendant that "this was his spot." Ramirez was not threatening in his demeanor, and he allowed defendant to continue camping there. Ramirez also showed his camping area to defendant, which was about 14 or 15 feet away. Ramirez's campsite had a "manmade tent" that consisted of items such as brush, trees, and items he had accumulated to build a shelter, along with a mattress. Ramirez was high on crystal methamphetamine and offered some to defendant, who declined. Ramirez was talkative, and defendant "shut him off" after a few minutes so defendant could go back to bed. The next day, defendant packed up his tent and left.

After spending a night with Gardner, defendant returned to the area off Cottle Road for a third night. Defendant felt depressed and walked to a store where he bought three, 24-ounce beers. He was drinking beer in his tent when Ramirez walked by. Defendant offered Ramirez a beer and then they went to Ramirez's campsite. Defendant indicated that he wanted to smoke the crystal methamphetamine that Ramirez had previously offered. Defendant provided his survival knife, which had a blade that was six inches and serrated on a portion, so Ramirez could break up the methamphetamine. They smoked the methamphetamine and drank beer.

Ramirez indicated that he was going to keep defendant's knife, and he would not give it back when defendant asked for it. The pair continued to smoke "a couple bowls" of crystal methamphetamine. Ramirez "started getting weird," grabbed his sleeping bags and defendant's knife, and went into defendant's tent.

Defendant followed Ramirez into the tent, removed his own shoes, and closed the tent. Defendant testified that he never wore shoes in the tent, and that he always closed his tent. Defendant had a two-person tent that was six feet by seven feet and approximately four feet tall. Defendant and Ramirez were approximately an arm's length apart. The pair continued smoking inside defendant's tent. According to defendant, Ramirez became "possessive over [defendant's] belongings" and kept "doing weird switching," such as switching his own hat for defendant's hat.

Defendant testified that Ramirez put his hands in his pants and indicated he was masturbating. Ramirez indicated that he wanted defendant to orally copulate him, and that he wanted to "fuck [defendant] in [his] ass." Defendant told Ramirez to get out of the tent. Ramirez stated that "he was gonna fuck [defendant] in [his] ass in [his] sleep anyway." Defendant reached over, recovered his knife from beside Ramirez, and again told Ramirez to get out of the tent. By this point, defendant was scared and took everything very seriously.

According to defendant, Ramirez's right hand came toward defendant. Defendant flinched and "slice[d]" Ramirez, and then he started stabbing Ramirez. Defendant turned to try to get out, but he could not grab the zippers to open the tent. He turned around and stabbed Ramirez "several more times" before slashing the tent to get out. After defendant was outside the tent, he tried to get his own shoes, which were inside the tent. At that point, defendant noticed that Ramirez was not moving and realized he was dead.

Defendant testified that if Ramirez hadn't threatened to rape him and then attack him, he would not have stabbed Ramirez. Defendant testified that he did not have a "choice" in the tent, and that he "just reacted to what happened." He did not know what would have happened to him in the tent if he didn't use the knife. He testified that he felt like Ramirez was going to "sexually hurt" him and he thought Ramirez was going to attack him.

Defendant thought about going to his friend Billy's house, but he believed Billy's dad would call the police and defendant did not want to get in trouble. Although he believed he was defending himself against Ramirez, defendant testified that he did not know there was a defense for what had occurred, and he believed that a person went to prison for life after killing someone.

Defendant testified that he went to Rubalcaba's house, which was two blocks away, and told him what happened. Defendant was in a panic and his clothes were bloody. He told Rubalcaba what he had done. According to defendant, Rubalcaba gave him a change of clothes. Defendant used Rubalcaba's phone to call Gardner.

Defendant testified that he went back to his campsite. He pulled Ramirez to Ramirez's campsite. Defendant then took down his own tent.

When Gardner picked up defendant, he told her that he had killed a person and that the person had tried to hurt him. He told Gardner that he felt threatened, and that the person was going to rape and beat him. He also told Gardner that the person was "drugged out," was trying to take his stuff, and had taken his knife. Defendant appeared frightened. Gardner was upset and "freaked out." Defendant tried to calm her down because he needed her help.

Defendant went to a creek to bathe and change clothes. At some point, he and Gardner used her car to pick up items from the campsite and discard them in dumpsters. The discarded items included the bloody tent and bedding from his campsite, as well as the sleeping bags that Ramirez had brought into defendant's tent. Defendant hoped the items would get thrown away and that the police would never find the items. According to defendant, he threw away items at three locations.

Defendant testified that he knew he had to get rid of Ramirez, too, and that he needed help to do so. He believed he might not get in trouble if Ramirez's body was never found. Defendant acknowledged buying two shovels to bury the body. He testified that burying the body wasn't his idea, and that he didn't know what to do. He had a discussion with someone about "where to bury the body, move the body, burn the evidence." Regarding burning, defendant believed that smoke would be discovered so he didn't think it was a "smart" idea.

At some point defendant called his friend, James. Gardner testified that she heard defendant tell James that Ramirez had threatened defendant, that he acted in self-defense, that he had to react, and that he felt threatened and scared. Defendant and James went to the campsite with shovels while Gardner stayed in the car. The pair were unsuccessful in digging because the ground was like "concrete."

Defendant denied lighting Ramirez's body on fire. He testified that James lit a match and placed it on the mattress. Defendant testified that they did not bring an accelerant to the site, nor did he see James use any type of accelerant. Defendant told James that the fire was "stupid," that people would see the light reflecting off the freeway sound wall, and that he did not want to get caught.

Defendant testified that the fire was "put out," and that he and James then left the area. Defendant initially testified that he couldn't recall who put the fire out, but he subsequently testified that he believed James put it out.

Defendant testified that he didn't "know how," but he and James ended up being "split up." He walked past Rubalcaba's house, where Gardner "was supposed to be," but he didn't see her or James. He testified that he spent about 15 minutes looking for them. He eventually found them in Gardner's car by Rubalcaba's house. Defendant was mad at Gardner and James because they were not "where they were supposed to be."

Gardner testified that James and defendant were talking in the car, and that defendant was upset that James had lit the fire. Gardner testified that she did not notice the fire until they were driving away. She testified that it appeared defendant and James just realized, too, that there had been a fire, and they seemed surprised. Gardner further testified that defendant was angry with James and referred to the fact that the fire was going to draw people's attention to that area.

Defendant testified that he did not know about any fire at that point, and that he did not remember seeing a fire as they were leaving in Gardner's car. He testified that he was mad at James only because James "tried to light the thing." Defendant testified that he remembered passing by the police while in Gardner's car and seeing flares on the ground. Defendant testified that he didn't realize the fire had been lit until the next morning. Defendant testified that he met with James, who said the news had reported a huge fire, that a body had been burned, and that they couldn't tell if it was male or female.

Defendant testified that he felt "horrible" for having involved Gardner, Rubalcaba, and James.

2. The police interviews

Defendant testified that he lied to the police about certain matters to protect his friends. He also testified that he did not want to get caught, and that he did everything he could to cover his trail.

Gardner told the police that defendant had stated that Ramirez was calling him names. Defendant acted insulted when he told Gardner that Ramirez had called him a "faggot." Defendant told her that Ramirez was "all drugged out and crazy" and had threatened defendant. According to Gardner, defendant stated that Ramirez had threatened to rape him when he was asleep, and defendant stated that he defended himself. Defendant also told her that Ramirez was trying to take his property and had taken his knife, which Gardner knew was important to defendant. Defendant indicated that he was trying to get his knife back. Defendant stated to Gardner that he was protecting his property because that was all he had left. Gardner told the police that she felt she had betrayed defendant by talking to the police.

Rubalcaba was interviewed by the police in May 2013. He did not want to get in trouble and he didn't want to be a "snitch." He told the police that defendant had asked him for a ride but that he refused. Rubalcaba was on probation at the time. At trial, Rubalcaba denied giving clothes to defendant.

3. Analysis of Ramirez's blood

The district attorney's crime lab analyzed a blood sample from Ramirez. No alcohol was found in Ramirez's blood. If a person drinks 24 ounces of beer, it may be detected in the person's blood for about two hours. Alcohol is eliminated out of the body at a constant rate, but once the liver stops working, so does the constant elimination rate. It is possible that ethanol could still escape from the body after a person dies if it is warm, the body is cut open, and the insides are exposed.

Methamphetamine and amphetamine were found in Ramirez's blood. Amphetamine is a "breakdown product" of methamphetamine. Methamphetamine is detectible in a person's blood for approximately 72 hours. The crime lab can accurately report the concentration of methamphetamine up to 0.700 micrograms per milliliter. Higher concentrations cannot be reported with the same accuracy. In that situation, the lab generally reports the value as greater than 0.700 micrograms per milliliter, which is the concentration that was reported for Ramirez. That amount is "pretty significant." A person taking therapeutic or a prescribed level of methamphetamine would only have a concentration level of 0.100 micrograms per milliliter or lower.

The effects associated with methamphetamine include wakefulness, euphoria, and an increased sense of energy. With the level of methamphetamine in this case, possible symptoms include confusion, irritability, paranoid delusions, hallucinations, aggressiveness, violent behavior, irrational behavior, increased sex drive, convulsions, coma, and death. At some point, the level of methamphetamine can cause a person to lose interest in sex altogether. Alcohol combined with methamphetamine is correlated with an increase in frequency of methamphetamine-induced psychosis.

A person will not necessarily experience every symptom associated with methamphetamine use. Further, if a person is very tolerant to the drug, severe symptoms might not occur. A person who abuses a drug can build a tolerance to the drug, which means that to achieve a certain reaction, over time the dosage will have to be increased.

4. Defendant's character for violence

Defendant testified that drinking caused him problems, and that he had gotten violent when he was drunk. He testified that he did not feel intoxicated when he was with Ramirez.

Gardner testified that defendant had "anger issues," and that he would get mad over "stupid things." She indicated that defendant let his anger get ahold of him and that he couldn't walk away from a situation. She stated that "drinking brought out the violence in him," and that he would get into fights when he was drunk. However, she had never seen anything that would lead her to believe that he would kill somebody.

5. Ramirez's character for violence

In May 1988, Ramirez hit his brother's neighbor with a bat three or four times. About a half an hour later, Ramirez returned and swung a bat at the neighbor, threatened to kill him, and stabbed him with a screwdriver. The neighbor did not know why Ramirez attacked him. On prior occasions Ramirez had spent the night and had eaten at the neighbor's house.

In April 1991, a police officer attempted to apprehend Ramirez, who was a suspect in a robbery. Ramirez failed to respond to verbal commands and hid behind a bush. The officer drew his firearm. Ramirez, who appeared confused, started walking slowly towards the officer. The officer put his gun away. Ramirez did not comply with the officer's command to stop walking until the officer threatened to hit him with a baton. During the incident, Ramirez did not say anything to the officer.

In May 2010, Ramirez was an inmate at a correctional center. A female guard testified that Ramirez made derogatory comments to her, which resulted in him being placed in the administrative segregation unit. The incident started when Ramirez displayed his middle finger from several feet away and told the guard to "shove it up [her] ass." Ramirez indicated that he wanted to fight the guard. He said, "I'm going to knock you in your face, bitch, bend you over and show you what a real man is." Ramirez did not physically touch the guard. The guard did not have any prior problem with Ramirez, and she found the incident "completely unexpected." The guard testified that it was "pretty common" for inmates to threaten a correctional officer as a means of getting removed from the general inmate population area. When inmates wanted to be removed, they generally owed debts or wanted to be out of the yard for their own safety. The guard did not know Ramirez's intent in this instance.

In March 2012, about a year before Ramirez was killed, a police officer was trying to talk to people at a park "to see what was going on and to just kind of be out there." The officer made contact with Ramirez, who was 5 feet 5 inches tall, weighed 155 pounds, and had a "medium build." Ramirez lied to the officer about his name and date of birth. After the officer determined Ramirez's identity, Ramirez was arrested for giving a false name to a police officer. During the contact, Ramirez stated that he used to be in the Nuestra Familia gang, and that he "ran a whole county jail" and "organized . . . scenarios and assassinations." He stated that he was a "dropout" of the gang, and that other people still thought he was in the gang.

C. The Prosecution's Rebuttal Case

1. The police interviews

When the police interviewed defendant on April 11, 2013, he told the police that he was about 5 feet 11 inches tall and weighed 140 or 145 pounds. Defendant indicated that, prior to the stabbing, he had two beers and gave a third beer to Ramirez. Defendant stated that Ramirez tried "punking me out of my own shit," and that Ramirez believed defendant "owe[d] him everything" because defendant had smoked Ramirez's drugs. Defendant told the police that he was not going to let someone "punk him, but he wasn't gonna be stupid and act on it." "[H]e figured he would get his stuff back one way or another." Although defendant indicated to the police that Ramirez had taken his hat, he never reported that Ramirez had taken his knife.

Defendant indicated to the police that Ramirez was "acting and talking gay" in the tent. Defendant stated he was scared when Ramirez said he "was gonna wait until [defendant] falls asleep to fuck him in the ass." Defendant told the police that he tried to stay calm, and that he got his knife. Ramirez "made a move" towards him, and he got scared. Defendant indicated that Ramirez's movement "wasn't like an attack swing" or "a perverted swing," but defendant " 'took it as threatening.' "

Defendant initially stated that he didn't know what Ramirez was going to do. He admitted that he "didn't give [Ramirez] a chance to do anything to [him]" before he stabbed Ramirez. Defendant never told the police that he asked Ramirez to leave the tent before stabbing him.

Defendant told the police that after the initial stabbing, he slashed the tent and exited it. He then requested his shoes from Ramirez, but Ramirez did not give them to him. Defendant stated, "[A]nd then, then I kept going at it. . . . I just kept going." The police understood defendant to be saying that he stabbed Ramirez further.

Defendant indicated to the police that he stabbed Ramirez even after Ramirez had screamed for help. When asked why he stabbed Ramirez again, defendant stated, "Because I already stabbed him already like in a panic."

Defendant told the police that after he realized Ramirez was dead, he started to clean things up. He dragged Ramirez from the area, and he threw items into his own tent before gathering up the tent. He planned to move the items, but they were too heavy for him to do it by himself.

Defendant then went to Rubalcaba's house. Defendant initially told the police that he only requested Rubalcaba's phone to call Gardner. Defendant claimed that he did not want to get other people in trouble for what he had done. Defendant later stated to the police that he had told Rubalcaba "a little, but not everything" about what happened.

Defendant stated to the police that he told Gardner everything and that she "freaked out." He tried to stay calm because he needed to use Gardner's car to move the tent and objects out of the area. Defendant told the police multiple times that he did not want to get caught.

Defendant told the police that he unsuccessfully tried to bury Ramirez's body. Defendant eventually acknowledged that James was involved, but he did not fully describe James's involvement. Several times defendant indicated that he didn't want to say what anybody else had done.

Defendant eventually indicated that he called James and told him what happened. Defendant thought James would help him bury Ramirez.

Regarding the fire, defendant initially claimed to the police that he did not know what happened, and that he did not see who "tossed the match." Eventually he stated that he started the fire, and that James and Gardner did not do anything. When asked if the fire was planned, defendant stated that "[t]he whole thing is an accident. Like accident over accident." When asked again about the fire, defendant stated that "he did not know how the fire got started" and that "it was not his idea. It just happened." When asked whether Gardner and James were present, defendant stated that he could not "snitch." He indicated that he didn't "want to get anybody else in trouble." At the time, the police believed James had lit the match.

After the police concluded their interview of defendant, he was allowed to be alone with Gardner in the interview room for a few minutes. Gardner apologized to defendant and told him that she felt she had betrayed him. He told her that she did not. He indicated that he had previously told her to "tell them everything" if he got caught and to tell the truth.

Rubalcaba was interviewed by the police in early May 2013, about a month after the incident. He initially indicated that he only knew what was on the news. Eventually Rubalcaba reported that defendant had stated that a person "jumped him" and that he stabbed the person. The person was "acting weird and acting gay and . . . giving [defendant] shit." Defendant asked to use Rubalcaba's phone and for a ride. Rubalcaba initially told defendant that he wasn't going to help defendant, but eventually they discussed "some options and eventually thought the best idea was to bury it." Rubalcaba also told defendant to get rid of items. Rubalcaba told defendant his "options," including that he "admit to it and see what happens . . . and try to get self-defense." Rubalcaba reported that defendant got into fights when he was drunk, but that defendant was "a surfer guy" and not a "killer." Rubalcaba stated to the police that, based on what James had told him about the fire, Rubalcaba believed that James had started the fire.

The police felt Rubalcaba was not being completely honest. The police knew that in the days after the homicide and leading up to defendant's arrest, and possibly thereafter, Rubalcaba had had "a lot of conversations" with James and Gardner about what happened. The police also knew that the statements from Gardner and Rubalcaba about the stabbing were based on what defendant had told each of them in the days after the stabbing.

2. Ramirez's character for violence

Regarding a 2010 incident when Ramirez was an inmate and threatened to rape a correctional officer, Ramirez indicated at a subsequent disciplinary hearing that he made the threat in order to get himself locked up in the administrative segregation unit. He indicated that he had dropped out of the Northern Structure, which was a Norteño prison gang; that he did not want to participate in the gang's activities in prison; and that he wanted to stay out of trouble. Ramirez was found to have committed a rule violation but was informed that he would be removed from the administrative segregation unit and placed back in the general prison population. He disagreed with being put back in the general prison population.

3. Defendant's character for violence

In 2008, late at night, defendant and a companion approached two people, who appeared to be Mexican or Latino, and asked if they were Sureños. Defendant also asked for money and cigarettes. One person indicated he was not in a gang and that he did not have any money. Defendant called them "scraps" and a fight ensued. One of the victims reported to the police that defendant and his companion were swinging Razor scooters at them. The victim was hit in the head by defendant and required stitches. After the police arrived, defendant was yelling and screaming, including that "he didn't want anything to do with the Mexican officer" and calling another officer an "asshole." Defendant indicated that he would talk to one officer "because [that officer] was white."

Regarding a February 2011 incident, defendant was arrested for shoplifting at a store. He was warned that if he returned, he would be arrested for trespassing. That same night, defendant returned. The security guard ordered defendant to leave. Defendant was confrontational and had to be escorted out. Outside the store, defendant picked up an 18-inch clay flower pot from a display, physically threatened the guard, and made a motion to throw the pot at the guard. After being apprehended by the police, defendant stated multiple times that he was going to return to "fuck up the store" and the security guard. Defendant did not appear to the police to be under the influence.

In an October 2011 incident, defendant was found on the sidewalk at night while under the influence of alcohol. A police officer tried to wake him up. The officer determined that defendant could not care for himself and attempted to place him in custody for public intoxication. Defendant pulled away violently, put his hands into fists, and physically resisted being placed in handcuffs. After a second police officer arrived, defendant was placed in handcuffs.

In a June 2012 incident, defendant punched a person's car, which caused the back fender to be dented. At some point, defendant reached into the car and tried to hit the driver. A witness tried to pull defendant away from the car while defendant continued arguing with the driver. The witness restrained defendant until the police arrived. Defendant was convicted of misdemeanor battery (§ 242) for the incident.

In an August 2012 incident, defendant was observed by the police drinking beer in violation of the municipal code. Defendant walked away and failed to comply with police commands. When he finally stopped, he positioned his hands as if to fight the officer. Defendant appeared angry and intoxicated. When officers tried to handcuff him, he physically struggled and attempted to kick them. A Taser had to be used to handcuff defendant. When a firefighter attempted to help defendant at the scene, defendant tried to use his head to hit the firefighter. Defendant was placed in a "wrap device," which prevents a person from moving around. During the booking process, defendant was not cooperative and had to be shackled. Defendant was convicted of two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) regarding the police officer and the firefighter.

D. The Defense Surrebuttal

Ramirez was convicted of robbery after he took a wallet, wristwatch, and money from a person in 1985. He was sentenced to two years in prison. Ramirez was also convicted of two counts of assault with a deadly weapon, in connection with the May 1988 incident in which he used a bat and screwdriver against his brother's neighbor. For those two convictions Ramirez was sentenced to four years in prison. Ramirez was again convicted of robbery after an April 1991 incident, in which he hit the victim twice in the jaw. Ramirez was sentenced to 12 years in prison.

Richard Subia, a public safety consultant, testified as an expert in prison gangs, prison culture, and rape in prison. Subia formerly worked for the Department of Corrections.

Subia reviewed Ramirez's prison file. From 1985 to 2011, Ramirez spent most of his time in prison, with many of the commitments due to parole violations.

There was information in Ramirez's prison file indicating that he was involved with Northern Structure, an offshoot of the Nuestra Familia prison gang. However, the Department of Corrections had never validated or classified Ramirez as a member or an associate of a gang.

In the late 1990's and the early 2000's, Ramirez was the victim of an assault in prison several times. Regarding one of the assaults, Ramirez stated that he was attacked by "Northern Hispanics" due to his refusal to participate in their illegal activity, and it was recommended that he not be placed in a cell with a "Northerner." During the timeframe of the assaults, Ramirez frequently referred to himself as a "dropout." At times, Ramirez was placed in segregated housing for his own protection because he claimed to be a dropout.

Rape or the threat of rape may be used to make an inmate do something for a gang, to require payment for protection, or to obtain items. An inmate may also give an item to another inmate to gain favor and to put that other inmate into debt to gain control over that inmate. Subia testified that an inmate may obtain control over another inmate through a progression of acts. For example, one inmate may give something to another inmate to gain favor, followed by the taking of property from that other inmate to see how the person reacts, and then escalate to either threats of rape or actual rape.

There was no history of predatory or assaultive behavior toward cellmates in Ramirez's prison file. There was also no evidence in Ramirez's prison file that he had been sexually violent against another person. There was one instance of discipline for threatening sexual violence on a female guard.

E. The Prosecution's Further Rebuttal

Dan Livingston, from the Campbell Police Department, testified as an expert in Hispanic criminal street gangs, Nuestra Familia, and Nuestra Raza. In Livingston's investigation into Ramirez's background, he did not find anything that indicated Ramirez was ever a member of Nuestra Familia. Livingston found no evidence that Ramirez had a gang tattoo, or that Ramirez was ever charged or convicted of a gang-related crime. Livingston further determined that Ramirez's housing in county jail was not consistent with being a Nuestra Familia member. He believed there was a possibility that Ramirez may have been a Nuestra Raza member in the late 1980's or an associated Northerner, but he would consider Ramirez a "northern dropout."

F. Additional Evidence

Based on the parties' agreement, the video recording of defendant's police interview, which was conducted on April 11, 2013, was played for the jury. Defendant indicated to the police that he did not get hurt during the incident in the tent with Ramirez.

The parties stipulated that on September 10, 2013, James pleaded no contest to mutilation of human remains (Health & Safety Code, § 7052) and to being an accessory (§ 32). The complaint stated that the offenses took place on or about April 9, 2013.

G. Verdicts and Sentencing

On the fourth day of deliberations, the trial court received a note signed by the jury foreperson regarding a "standout" juror who "admits bias/sympathy with the defendant" and "expresses great concern over potential sentencing." The court questioned the juror and the foreperson. After receiving briefing on the issue and hearing argument from the parties, the court discharged the juror the following day.

On February 25, 2016, the day after the juror was discharged, the reconstituted jury found defendant not guilty of first degree murder, but guilty of second degree murder (§ 187; count 1), and guilty of unlawful mutilation of human remains (Health & Saf. Code, § 7052; count 2). The jury also found true the allegation that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the murder (§ 12022, subd. (b)(1)).

Defendant filed a motion to modify the verdict, contending that the verdict of second degree murder was contrary to law or evidence (§ 1181, subd. 6). The prosecutor opposed the motion. On June 10, 2016, the trial court denied the motion and sentenced defendant to the indeterminate term of 15 years to life consecutive to the determinate term of three years.

III. ANALYSIS

A. Substantial Evidence of Unlawful Mutilation of Human Remains

Defendant contends that his conviction for unlawful mutilation of human remains (Health & Saf. Code, § 7052) must be reversed because there is insufficient evidence that he started the fire that burned Ramirez's body. The Attorney General contends that substantial evidence supports the conviction, and that the jury reasonably rejected the defense claim that James was entirely responsible for the fire that mutilated Ramirez's remains.

1. Legal principles

Health and Safety Code section 7052, subdivision (a) makes it a crime to "willfully mutilate[] . . . any remains known to be human, without authority of law." "In considering a challenge to the sufficiency of the evidence to support [a conviction], we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)

The trial court instructed the jury that, to find defendant guilty of unlawful mutilation of human remains, "the People must prove that: [¶] 1. The defendant willfully mutilated human remains; [¶] 2. At the time he did so, the defendant knew the remains were human; [¶] AND [¶] 3. The defendant was not cremating the remains under authority of law."

2. Analysis

At trial, the prosecutor argued that either defendant or James lit the fire, and that the evidence supported the conclusion that defendant was "tending that fire" and "actually got it going."

We determine that substantial evidence supports the finding that defendant willfully mutilated Ramirez's remains.

First, there was evidence that defendant had a motive to burn Ramirez's body. Defendant admitted at trial that he stabbed Ramirez to death. He knew he was in trouble at that point. Defendant testified that he did not want to get caught, he believed he would go to jail if he got caught, and he did everything he could to cover his trail. He admitted discarding bloody items from the scene and knowing that he had to get rid of Ramirez's body. He knew that if Ramirez's body was never found, he might never get in trouble for the stabbing. Defendant further admitted that he was unsuccessful in his attempt to bury the body.

Second, there was evidence that defendant was in the location of the fire. Gardner had dropped off and then picked up defendant from the area right before she saw the fire.

Third, defendant gave conflicting accounts to the police about the fire, and those statements further conflicted with his trial testimony. At one point, defendant admitted to the police that he started the fire.

Specifically, defendant initially told the police that he did not know what happened, and that he did not see who "tossed the match." Eventually he twice indicated that he started the fire. He denied that James had anything to do with the fire. When asked again about the fire, defendant stated that he did not know how the fire got started.

At trial, defendant testified that James lit a match and placed it on the mattress. Defendant further testified that the fire was "put out." (Italics added.) Defendant initially testified that he couldn't recall who put the fire out, but he subsequently testified that he believed James put it out. Defendant testified that he and James then left the area.

Gardner testified that defendant was aware of the fire as they were driving away, and that defendant and James were arguing about the fire. Defendant, on the other hand, testified that he did not know about the fire at that point. He testified that he didn't realize the fire had been lit until the next morning when James told him it was on the news.

On appeal, defendant contends that his conflicting stories to the police about the fire were due to him "trying to avoid informing on his friend [James]." However, in view of defendant's inconsistent stories to the police about the fire, which was also inconsistent with his trial testimony, and in view of Gardner's trial testimony, it was within the province of the jury to determine whether to believe some, all, or none of defendant's testimony, or the testimony of any other witness on the issue of who started the fire and whether defendant caused Ramirez's burn injuries. As a reviewing court, we neither reweigh the evidence nor reevaluate a witness's credibility. (Albillar, supra, 51 Cal.4th at p. 60.)

Fourth, although Gardner and Rubalcaba testified that James claimed to have started the fire, both Gardner and Rubalcaba were defendant's friends. Gardner was loyal enough to defendant that she helped him discard evidence. Rubalcaba did not appear honest or forthcoming about what he knew, and there was evidence that he provided clothes to defendant after the stabbing and discussed with defendant what to do with the body and other evidence. Thus, the jury could have viewed with skepticism Gardner's and Rubalcaba's testimony that James, not defendant, had started the fire. Alternatively, as we explain below, the jury could have concluded that James did start a fire and that defendant tended to it, or that James's fire was put out (as defendant claimed at trial) and defendant started a new fire. Either inference—that defendant tended to the fire started by James or that defendant started a new fire—is supported by Gardner's testimony that she saw a fire within minutes after defendant arrived at her car.

Fifth, Captain Murphy concluded that the fire was caused by an open flame device, such as a lighter or match, that was applied to a combustible. To cause the fire to burn and damage the body, he believed the fire was aided by additional combustibles. Captain Murphy explained that the condition of the body suggested there was sustained heat for an extended period, or very intense heat for a shorter period. There was evidence that the fire department arrived quickly after the fire was observed by law enforcement from across the highway. Captain Murphy did not believe the fire was started by someone throwing a match and then walking away, because a match tends to go out on its own. Likewise, clothing may sustain a small fire, but once the heat source is removed, the fire would likely extinguish on its own after a period. Captain Murphy's testimony could support the inference that, even if James lit the mattress on fire, that act alone was not enough to cause the intense fire to Ramirez's body.

Sixth, defendant could not adequately explain why he arrived at Gardner's car later than James, which was around the time of the fire. Defendant testified that both he and James left the area where Ramirez was located, and that he didn't "know how," but he and James ended up being "split up." Defendant testified that he spent about 15 minutes looking for Gardner and James, and that he eventually found them in Gardner's car by Rubalcaba's house. However, defendant was quite familiar with the area because his uncle and friends, including Rubalcaba, lived in the neighborhood within walking distance. Defendant never adequately explained why or how he got separated from James, and why or how he, but not James, had such difficulty finding Gardner's car.

Seventh, although defendant testified at trial that a fire lit by James was put out, Gardner saw the fire within minutes of picking up defendant.

Based on the record, the jury could reasonably conclude that defendant started the fire that caused the damage to Ramirez's body. In addition, or in the alternative, the jury could reasonably conclude that defendant tended to the fire that either he or James started, to ensure that the fire continued to burn and/or was burning with such intensity that Ramirez's remains would be burned. We determine that substantial evidence supports the jury's finding that defendant willfully mutilated Ramirez's remains within the meaning of Health and Safety Code section 7052, subdivision (a).

Defendant contends that there is no factual basis to infer that he was tending the fire between the time James returned to Gardner's car and the time he returned to the car. According to defendant, he could have been "doing any number of other things," such as "trying to put the fire out," "warning other residents of the campsite about the fire," or looking for Gardner's car.

We are not persuaded by defendant's arguments. There was no evidence that defendant tried to put out the fire, or that there were other campsite residents who defendant warned about the fire. To the contrary, to the extent defendant acknowledged at trial that a fire had been started at the campsite, he testified that James put it out and that they both left the area thereafter. Gardner testified that she saw the fire within minutes of defendant arriving at her car. Thus, if defendant's testimony about James starting and putting out the fire is to be believed, Gardner's testimony raises the inference that defendant started a second fire that resulted in the burning of Ramirez's body. Further, as we have explained, the jury could have reasonably rejected defendant's testimony that he left the campsite at the same time as James but inexplicably got separated from him and had to spend time looking for Gardner's car.

In sum, we determine that the record "contains substantial evidence" such that "a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Albillar, supra, 51 Cal.4th at p. 60.)

B. CALCRIM No. 505

Defendant contends that the third element in CALCRIM No. 505, regarding whether a defendant acted in lawful self-defense, incorrectly informs the jury that the "defense is unavailable to a defendant who was justified in using some deadly force, but who used too much of it." He argues that the concept of "excessive force does not apply to homicide defendants." Defendant contends that "[d]eadly force is already the maximum amount of force that an individual can use; there is no principled basis for parsing it into degrees." According to defendant, if a person is entitled to use deadly force, using "excessive amounts of it" does not result in the forfeiture of a claim of self-defense. Defendant contends that the instructional error violated his federal constitutional right to due process, as well as the right to defend himself with deadly force under the Second Amendment.

The Attorney General contends that defendant forfeited the claim of instructional error because he did not object to, or request modification of, the instruction in the trial court. The Attorney General also argues that CALCRIM No. 505 is legally correct, and that any instructional error was harmless.

1. Self-defense instructions

The jury was instructed on self-defense pursuant to CALCRIM No. 505 as follows:

"The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if:

"1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being raped;

"2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;

"AND

"3. The defendant used no more force than was reasonably necessary to defend against that danger.

"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.

"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.

"The defendant's belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. [¶] . . . [¶]

"A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of great bodily injury/rape has passed. This is so even if safety could have been achieved by retreating. [¶] . . . [¶]

"The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter." (Italics added.)

The jury was also instructed pursuant to CALCRIM No. 506, regarding a justifiable killing to defend oneself in one's own home.

The jury was also instructed pursuant to CALCRIM No. 3474 as follows: "The right to use force in self defense continues only as long as the danger exists or reasonably appears to exist. When the attacker no longer appears capable of inflicting any injury, then the right to use force ends."

2. Legal principles

" ' "It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions." [Citation.]' [Citation.] ' " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " [Citation.]' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 905 (Covarrubias).)

We may review a claim of instructional error that affects the defendant's "substantial rights," with or without a trial objection. (§ 1259; see People v. Taylor (2010) 48 Cal.4th 574, 630, fn. 13.)

A person has the right to use "all force necessary" in self-defense if, based on the "nature of the attack," a reasonable person would be "justified in believing that his [or her] assailant intends to commit a felony upon him [or her]." (People v. Clark (1982) 130 Cal.App.3d 371, 377 (Clark), overruled on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 92.) However, "a person may use only that force which is necessary in view of the nature of the attack; any use of excessive force is not justified and a homicide which results therefrom is unlawful. [Citation.]" (Clark, supra, at p. 377.) Significantly, "a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack." (Id. at p. 380.)

3. Analysis

In this case, the jury was instructed that lawful self-defense has three elements: "1. The defendant reasonably believed that he was in imminent danger . . . ; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." Defendant contends the third element "is wrong." We are not persuaded by defendant's arguments.

First, we reject defendant's contention that the third element, which addresses the amount of force used by the defendant, "does not apply to homicide defendants." "[A] person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack." (Clark, supra, 130 Cal.App.3d at p. 380, italics added.)

Moreover, even if a defendant had an initial right to use deadly force, the continued use of deadly force may be unlawful. "The law of self-defense is based on the reasonable appearance of imminent peril of death of, or serious bodily injury to the party assailed. When that danger has passed and when the attacker has withdrawn from the combat, the defendant is not justified in pursuing him further and killing him, because the danger is not then imminent, and there is no apparent necessity to kill to prevent the death of or serious bodily injury to the defendant. [Citations.]" (People v. Keys (1944) 62 Cal.App.2d 903, 916 (Keys).) In Keys, for example, the decedent fired one shot from his revolver at the defendant. (Id. at p. 907.) The defendant "immediately returned the fire" with his rifle, hitting the decedent in the arm. (Ibid.) The decedent ran from the defendant, who continued to shoot at the decedent. (Id. at pp. 907-908.) The appellate court observed that there was evidence that the decedent "was running away when the fatal shot was fired." (Id. at p. 916.) The appellate court determined that the "danger to defendant was not imminent and under the law of self-defense he had no right to take the life of [the decedent]." (Id. at p. 917; see CALCRIM No. 3474 [right to use force continues only as long as the danger exists; when the attacker no longer appears capable of inflicting any injury, the right to use force ends].)

In addition, "measures of self-defense cannot continue after the assailant is disabled." (People v. Lucas (1958) 160 Cal.App.2d 305, 310 (Lucas).) In Lucas, the appellate court concluded that the evidence weighed "strongly against the [defendant's] contention that self-defense justified the killing," where the defendant first shot the unarmed decedent when he was seated, one or more shots struck the decedent from the rear, and the course of one bullet through the decedent's body indicated that it was fired while the decedent was falling. (Ibid.) In People v. McCurdy (1934) 140 Cal.App. 499, the appellate court explained that, although the "defendant may have fired the first shot in self-defense, disabling his assailant, he was not justified in continuing firing or in fatally wounding the assailed, particularly while the deceased lay upon the floor." (Id. at p. 503.)

Second, we do not believe there is a " ' " 'reasonable likelihood that the jury understood' " ' " (Covarrubias, supra, 1 Cal.5th at p. 905) CALCRIM No. 505 as making the doctrine of self-defense unavailable to a defendant "who used too much . . . [deadly force]," as defendant contends on appeal The first two elements listed in CALCRIM No. 505 address what the defendant believed, that is, whether the defendant "reasonably believed" there was an imminent danger and whether the defendant "reasonably believed" the immediate use of deadly force was necessary. The third element focuses on the force "used" by the defendant. (CALCRIM No. 505.)

Specifically, the instruction's third element requires the jury to consider whether the defendant "used . . . more force than was reasonably necessary to defend against" the danger. (CALCRIM No. 505, italics added.) Likewise, the paragraph that follows this element in CALCRIM No. 505 explains to the jury that the defendant "is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation" and that the killing was not justified "[i]f the defendant used more force than was reasonable." (Italics added.) The instruction does not state that the jury must consider whether the defendant used more deadly force than was reasonably necessary to defend against the danger. Thus, contrary to defendant's contention, CALCRIM No. 505 does not require the jury to "pars[e]" the amount of deadly force "into degrees." In this case, the jury had to determine whether defendant had the right to defend himself at the outset of the stabbing incident and thereafter, due to the danger purportedly posed by Ramirez, and whether the amount of force used was reasonably necessary. (See Clark, supra, 130 Cal.App.3d at p. 378 ["whether the circumstances would cause a reasonable person to perceive the necessity of defense, whether the defendant actually acted out of defense of himself, and whether the force used was excessive, are normally questions of fact for the trier of fact to resolve"].)

We are not persuaded by defendant's contention that CALCRIM No. 505 required him to "pause after each swing of his knife and determine whether or not Ramirez continued to present an imminent threat of raping him, stabbing him again only if he did." As explained by the California Supreme Court in People v. Humphrey (1996) 13 Cal.4th 1073: " 'Justification does not depend upon the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and that the defendant acted out of that fear. [Citations.]' [Citation.] The defendant may well be mistaken in his assessment of the circumstances; but if reasonably so, he is nevertheless entitled to the defense. [Citations.] In the words of Justice Holmes, 'Detached reflection cannot be demanded in the presence of an uplifted knife.' (Brown v. United States (1921) 256 U.S. 335, 343.) 'In defending himself, however, a person may use only that force which is necessary in view of the nature of the attack . . . . [Citation.]' [Citation.]" (Id. at pp. 1093-1094, italics added.)

Accordingly, we reject defendant's claim of instructional error.

C. Discharge of Juror

Defendant contends that the trial court erred by removing a juror during deliberations. He contends the error violated his constitutional rights to an impartial jury and a unanimous verdict. The Attorney General contends that the record amply supports the juror's discharge for bias.

1. Jury note and inquiry of foreperson

The jury retired to deliberate for approximately half a day on February 18, 2016, and then deliberated on February 19 and 22, 2016. On the fourth day of deliberations, February 23, 2016, the jury submitted a note to the trial court. The note read, "What options are there when the jury votes 11:1 on both charges (mutilation + homicide) but the standout suggests that it may be her English and insists on creating her own definitions of legal terms. In addition, she admits bias/sympathy with the defendant due to a relationship with an inmate, expresses great concern over potential sentencing, uses non-relevant analogies (implying a lack of understanding), acts confrontational, tends to make judgements based on her imagination, and overall insists she's confused by the procedure and evidence." (Some capitalization omitted.)

The trial court questioned the foreperson, who had signed the note. The foreperson indicated that the note referred to Juror No. 5. The foreperson explained that the other 11 jurors participated in the drafting of the note, that one of those 11 jurors was the "actual scribe," and that the foreperson read the note aloud to all of the jurors to make sure that the note was "exactly what they wanted to go forth."

The foreperson referred to the juror that was seated as Juror No. 5. In the record, Juror No. 5 is also referred to as Juror No. 26, which was her number when she was a prospective juror.

The trial court asked the foreperson about each of the issues raised in the note. Relevant here, the foreperson stated that on the first day of deliberations, the jury read some of the instructions. According to the foreperson, Juror No. 5 stated, " 'We need to make sure. This is going to ruin a young person's life, and we need to make sure . . . that we don't do anything to ruin this person's life.' " The foreperson responded that "we're not ruining anybody's life. Something already happened. We need to find out what we think about this case. What happened." The foreperson stated that Juror No. 5 "then . . . talked about the death penalty." The foreperson told her, "It's not a death penalty case. We need to take that off the record. We're not talking about that." The foreperson observed that, "according to the rules, we weren't to talk about what would happen if the - as far as what sentencing, and things like that."

The foreperson also stated the following to the trial court: "[Y]esterday [Juror No. 5] started talking about the fact that she volunteers in a jail and counsels or talks to people. And one of the jurors said, 'Did that come up . . . when you were being questioned for the jury? What are you talking about?' And [Juror No. 5] says, 'Yes, it did.' They said, 'Well, we didn't hear it. Was that written down?' She said, 'Yes, it was.' " The foreperson indicated that the jury "[k]ind of left it at that."

The trial court inquired further about the jury note's reference to Juror No. 5 admitting sympathy with the defendant due to a relationship with an inmate. The foreperson responded, "[A]s I said, in the beginning, when she first came she was quite concerned about the age of the defendant, . . . what we were doing to his life because of whatever we may come up with. That the victim was portrayed as an angel, and that wasn't so. And then yesterday is when she had talked about that she did something in the jail, or volunteers in the jail, or something, and that she's, I guess, sympathetic to, you know, to people."

The trial court also inquired further about the issue of sentencing. The foreperson stated that Juror No. 5 "had talked about that a couple of times." The foreperson told the court: "And then I strongly had said that we needed to take that off discussions. That that was not our job. That that was your job. And, in fact, I had also said whatever has happened to both of these people was not our fault for whatever we [were] doing here. That those two lives have already been altered. And we're just to focus on what we're doing right now. And she was still, 'I know I'm not supposed to be sympathetic. I can't feel sorry, but I do. This is terrible.' [¶] And we collectively were still saying, you can have empathy, but you can't put that into what we're doing here. And can we move on to one of these items that we were talking about. And I think she was today very frustrated that the jurors were asking her these hard questions as to, how fair and impartial are you, and are you understanding everything?"

2. Inquiry of Juror No. 5

The trial court brought Juror No. 5 into the courtroom after the foreperson exited. The court asked Juror No. 5 about the issues in the jury note.

Relevant here, the trial court raised the issue of whether Juror No. 5 had sympathy or a bias for defendant. In response, Juror No. 5 stated, "If I committed . . . criminal activities, . . . I would want the jury to be fair. That's what I was trying to do. Was there clear evidence to make him guilty or make her guilty. That's all I was looking for. I believe many people were kind of resenting it."

The trial court then asked Juror No. 5 whether she told other jurors information "about any dealings [she] may have had with inmates at the jail." Juror No. 5 responded, "Yes, Your Honor. I confessed. I did that initially. So they didn't want me to insert that into this discussion, so I did my best not to. But I constantly think, as bad as what I was sharing, I felt few jurors already determined, this is going to be the verdict kind of attitude. I felt as wrong as my sharing, I didn't feel that was right either." When asked what she specifically told the other jurors about the "inmate jail issue," Juror No. 5 stated, "I said I was discipling [sic] an inmate." In explaining to the court her contact with the jail inmate, Juror No. 5 stated, "I will try to help him to get rid of the criminal mindset so that when he comes home he won't have to go back to prison." The court asked, "[D]id you tell us that on your questionnaire." Juror No. 5 responded, "Yes, Your Honor."

The trial court further asked Juror No. 5 about "who brought up the issue of [her] discipling the inmate." Juror No. 5 stated, "I just shared how I felt about this cases [sic]. And they said I'm not supposed to insert that into this case, so I do my best not to insert that issue." The court asked whether she was "able to not insert it, or did it insert in [her] mind." Juror No. 5 responded, "That, I couldn't tell. Even psychologists, I don't believe they can tell." The court stated, "It's not about them. It's about you. Have you been able to separate that issue?" Juror No. 5 stated, "I believe I did. I didn't insert that with this case. I don't think I did it."

The trial court next inquired about whether Juror No. 5 "had any discussion about any sentences that might be part of the mix here." She responded, "I questioned it, but . . . they said the judge told us not to consider that. So I understood that point and moved on." She indicated that she remembered the court "saying that" they should not consider sentencing.

The trial court asked why Juror No. 5 brought sentencing into the discussion. She stated, "From young age I was brought up stormy life [sic]. So when I see other people going through difficulty my heart goes out. Not just criminal. Anybody. I try help them [sic]. That's my instinct. Not to violate any rules and regulations you guys made up. My mom left me when I was six years old. My husband battered me. I lost all my front tooth [sic]. I went through all kinds of storms. When I see people going through storms, not just [defendant], or particular criminals, my heart goes out. I don't know how I could change that inside of me." The court asked whether the juror thought she was being fair and whether she was "separating out this wanting to help someone from [her] role as a juror." Juror No. 5 responded, "Yes, Your Honor. I will be trying to do my best to be fair to everybody, not just to [defendant] or the jurors. I thought I followed your instruction. Make sure evidence proves this. So I read that. And if there's a conflict in evidence, give benefit for the defendant. That's what I've been following, but I believe . . . none of these jurors liked it."

3. Argument by the parties

After Juror No. 5 left the courtroom, defendant argued that Juror No. 5 should stay on the jury while the prosecutor contended that the juror should be removed. The trial court expressed concern regarding the juror's "issue of when I see someone in distress I want to help them." The court referred to the juror's relationship with an inmate, and "[t]he fact that that was inserted into the proceedings." The court indicated that it had reviewed the juror's questionnaire. The court stated, "The bigger piece here is this fairness, sympathy issue, and the fact that I was told that it was disclosed. And I'm going to show the questionnaire to both of you." The parties agreed that the jury had not disclosed the relationship with the inmate on the questionnaire.

Defendant contended, however, that the questionnaire did not contain a question to which it should have been disclosed. The trial court clarified that "it was more of a concern, from the Court's perspective, that I asked if it had been put into the questionnaire and the answer was, yes. And that does, I think, coincide with what [the foreperson] said. Because I guess the jurors have the same - a juror or jurors - I don't know what - have the same issue."

Defendant responded that the questionnaire "was filled out five or six weeks ago" and that Juror No. 5 "likely . . . feels that she disclosed it."

The prosecutor argued that Juror No. 5's statement to the other jurors and the court was "incorrect" and that "it doesn't seem like something that can be mistaken." The prosecutor also observed that Juror No. 5 had said that her husband had beaten her, and that the juror got emotional when disclosing that information to the court. However, the juror had not disclosed that information on the questionnaire, although she had disclosed on the questionnaire that her sister or her had been the victim of auto burglaries and a home burglary. The prosecutor also raised the issue of Juror No. 5 considering penalty and punishment during deliberations. After identifying other concerns about the juror, the prosecutor contended that Juror No. 5 had not been forthcoming and honest with the court, and that there was sufficient information to excuse her from the jury.

Defendant argued that although Juror No. 5 had indicated that defendant was a young man and that the jury could ruin his life, she also indicated that she wanted to make sure the jury was being fair and that they did not miss anything. The juror further indicated that she set aside the issue of punishment and her relationship with the inmate during deliberations.

The trial court reiterated that the "sympathy, bias, punishment issue given the inmate situation" was "deeply concerning to the Court." The court expressed concern that the juror had not disclosed the relationship with the inmate, that the juror incorrectly stated that the relationship had been disclosed, and that the relationship was "inserted into deliberations" by the juror.

Defendant contended that the issue was whether the juror was fair and impartial. He argued that her relationship with the jail inmate could have caused her to "want to be more fair and want to pay closer attention," which would be "something positive." Regarding the jury questionnaire, defendant argued that the juror "filled up the section as far as crimes that she had been a victim of." He contended that her failure to disclose domestic violence may not have been intentional. The court responded that "having your husband knock your teeth out . . . is a little more than a car burglary."

The prosecutor subsequently raised additional conduct by Juror No. 5. As recounted by the prosecutor, at the end of one court session, Juror No. 5 attempted to pass a note to the court reporter. The court told the juror more than once not to have contact with the court reporter. The note was taken from the juror and the court and the parties reviewed the note. At the more recent hearing on whether the juror should be discharged, the court stated that it did not perceive the earlier incident as involving the juror's inability to follow instructions. However, the court at the time "did have a question . . . about her ability to observe boundaries," which was a concern that the court currently had with the juror.

The handwritten note from Juror No. 5 states: "I have . . . a massage therapist certificate. I saw you shaking your hands. I believe your posture (repetitive). I can give u a few good stretches for u during break if u want. (u don't need to pay me or anything; just want to help u." (Some capitalization omitted.)

The prosecutor also recounted an incident where Juror No. 5 apparently volunteered to translate for a witness who spoke another language. The prosecutor stated that the incident was "a reflection of her inability to maybe understand what her role is as a juror." The court responded, "Boundaries."

Lastly, the prosecutor stated that Juror No. 5 was "always up here" at the courtroom, despite the court clearly telling the jurors to assemble in the morning and after lunch in the jury assembly room. The prosecutor acknowledged that this was a "very minor" issue but that it showed the juror's "habit" of doing something "over and over in a variety of different ways."

The trial court requested briefing from the parties. The court ordered the jury to return to court the following morning.

4. Briefing, further hearing, and the trial court's ruling

In a written brief, the prosecutor contended that Juror No. 5 could not put aside her sympathy and base her verdict on proper considerations. According to the prosecutor, the juror improperly considered punishment and intentionally concealed her relationship with a jail inmate and that fact that she was a victim of domestic violence. The prosecutor contended that bias, as well as a juror's consideration of punishment when the jury had no sentencing power, were grounds for her removal.

Defendant contended in a written brief that Juror No. 5 should not be removed. He argued that the record did not show that the juror deliberately concealed a bias or made misrepresentations about whether she could be a fair and impartial juror. Defendant contended that the jury questionnaire did not call for the juror to disclose the inmate relationship, and that the juror likely did not disclose domestic violence because she tried to forget it or was embarrassed to speak about it.

A further hearing was held on the matter on February 24, 2016. After hearing argument from the parties, the trial court detailed the reasons for discharging Juror No. 5. Relevant to this appeal, the trial court made the following factual findings.

The trial court also made factual findings regarding Juror No. 5 having English language skills and auditory skills that were sufficient for service as a juror. --------

First, the foreperson's note was generated by all the jurors, except Juror No. 5, and was drafted in her presence with its contents stated out loud in her presence.

Second, Juror No. 5 disclosed her "discipling" relationship during jury deliberations. The other jurors asked Juror No. 5 whether she told the court and/or counsel about that relationship during the voir dire process, and she responded affirmatively.

Third, Juror No. 5 did not disclose her "discipling" relationship with an inmate during the voir dire process. However, when the court asked the juror whether she had disclosed that information on her questionnaire, she responded affirmatively.

Fourth, Juror No. 5 did not disclose during the voir dire process that her husband had knocked out her front teeth.

Fifth, Juror No. 5 during jury deliberations referenced penalty and/or punishment.

Sixth, the jurors were instructed that they were not to consider penalty or punishment in reaching a decision in this case. The jurors, other than Juror No. 5, referenced this instruction in response to the comments of Juror No. 5 during deliberations.

Seventh, the jurors were instructed that they were not permitted to allow bias, sympathy, prejudice, or public opinion to influence their decision. The jurors, other than Juror No. 5, referenced this instruction in response to the comments of Juror No. 5 during deliberations.

After stating its factual findings, the trial court detailed its reasons for discharging Juror No. 5. The trial court indicated that it did not take the decision to unseat a deliberating juror "lightly." The court was also "mindful" that it was not the court's role to direct the manner of jury deliberations. Deliberations may be contentious and difficult, but those were not situations in which the court would "insert itself."

The trial court stated that there must be a "demonstrable reality" that a juror is unable to perform her duty. In this regard, the court had "significant and serious concerns" about Juror No. 5 referencing penalty and punishment during deliberations, which was "a clear violation" of the jury instructions. The court also had "significant and serious concerns" about Juror No. 5 "inserting her own personal experience as someone who is discipling an inmate into jury deliberations, as it brings into the jury deliberation room a bias and sympathy on the part of a juror that actually has no place in jury deliberations."

The trial court explained that the other jurors' response to Juror No. 5 sharing the "disciplining" experience "weigh[ed] heavily in the Court's decision." The other jurors told Juror No. 5 that sympathy was not to be part of the deliberation process. The other jurors also asked Juror No. 5 if this inmate relationship had been disclosed to the court or counsel, and she responded affirmatively.

The trial court stated that this raised two "significant" issues "with respect to the integrity of this jury deliberation process." First, the relationship was not disclosed during the voir dire process, and the foreperson indicated that the other jurors did not remember it being disclosed. Second, the fact that the jurors were questioning whether it was disclosed meant that there were concerns by the jurors regarding whether Juror No. 5 had the ability to be neutral during deliberations. The court determined that this meant "the integrity of the jury deliberation process" had been affected. The court found that the "problem" was "compounded" by Juror No. 5's reference to the death penalty, which "add[ed] to the perceptions of the other jurors."

The trial court explained: "Referencing penalty or punishment in combination with sharing a story about discipling an inmate at the county jail inserts issues into the jury deliberation process which go to the heart an[d] integrity of the process.

"This is why jurors are directly and unequivocally instructed that bias, sympathy, prejudice, and public opinion are not to be part of the deliberation process. Consideration of punishment raises issues related to these areas.

"The problem in this situation is that Juror No. 5 violated both rules by making the statements that she did. And although she indicates she can be fair, unfortunately, she has tainted the deliberation process with her comments. Juror No. 5 advised the Court that she understood the instructions. [¶] Indeed our Supreme Court has stated that juror[s] are presumed to understand the instructions. Juror No. 5 violated two of the most fundamental of the jury instructions and inserted sympathy and consideration of punishment into the deliberation process. Although other jurors reminded Juror No. 5 of the instructions not to consider punishment, and that sympathy, bias, prejudice, and public opinion were not to be a part of the deliberations, the Court does not believe that Juror No. 5, no matter how well intentioned, has the ability to truly follow these instructions. Unconscious bias is just as dangerous as conscious bias, and has no place in jury deliberations.

"This is of concern to the Court, because to the extent that all opinions of the deliberating jurors must be considered by the jurors as a whole, the Court believes that the opinions of Juror No. 5 could be discounted by other jurors because of her reference to the inmate relationship and her reference to punishment.

"Indeed this may well be the source of the frustration expressed by other jurors with respect to the deliberation process. Again, this goes to the heart of the integrity of the process.

"When Juror No. 5 advised the Court and her co-jurors that she had disclosed the inmate relationship during the [voir] dire process, this proved to be untrue. It is to be noted that the Court had not reviewed the juror questionnaire for Juror No. 5 when the Court asked the question of the juror. This Court reviewed the questionnaire after questioning Juror No. 5, because candidly the Court believed it would have remembered the disclosure of that information, as the attorneys would have likely followed up on it. [¶] If they did not, then the Court would have followed up on it. If for no other reason [than] to use it as an opportunity to remind all prospective jurors that they need to approach their role as jurors neutrally and impartially.

"The Court cannot decide whether the failure to disclose the relationship with the inmate was intentional or unintentional. So the Court has used the legal standard of the failure to disclose to be unintentional in deciding whether Juror No. 5 is able to perform her duty as a juror in these proceedings.

"The questionnaire did reference whether or not you, as a potential juror, or anyone close to you, has been convicted of a crime. The Court also asked a general catchall question about whether there was anything that would make it difficult for a prospective juror to be fair and impartial in this case. The Court finds that Juror No. 5 had at least two opportunities to bring the inmate relationship to the attention of the Court during the voir dire process. And, in fact, . . . based upon her statements to the co-jurors and the Court, [Juror No. 5] believe[d] that she did bring it to the attention of the Court. This tells the Court that Juror No. 5 believed the relationship to be something that the Court and parties should know.

"Had the information been brought to the attention of the Court, the Court and counsel could have explored issues related to bias and sympathy with Juror No. 5 to determine if she had the ability to follow the Court's instruction about reaching a verdict without consideration of bias, sympathy, prejudice, or public opinion.

"The Court applies the test of whether this unintentional concealment results in a juror being sufficiently biased for the Court to find that Juror No. 5 is unable to perform her duties. The Court finds that by inserting her own personal relationship with an inmate into the jury deliberation process, in combination with discussion about penalty and punishment during deliberation, that Juror No. 5 is sufficiently biased. Such that the Court would find good cause under Penal Code Section 1089 that Juror No. 5 is unable to perform her duty as a juror in this proceeding.

"Juror No. 5 advised the Court that she understood the jury instructions. The Court must find that Juror No. 5's disregard of the jury instructions is intentional. This makes it all but impossible for the Court to find that Juror No. 5 is deliberating in a manner which is free from bias, sympathy, prejudice, or public opinion.

"It also makes it impossible for the Court to find that Juror No. 5 has the ability to follow the instructions.

"I do want to address the additional issue that Juror No. 5 did not disclose the fact that she had been the victim of her husband knocking out her teeth during the voir dire process. The Court finds that the failure of Juror No. 5 not to disclose that fact intentional. The questionnaire specifically asked whether a prospective juror has been the victim of a crime. Juror No. 5 disclosed other crimes, but not this one.

"Juror No. 5 expressed to the Court during its questioning that she had a stormy life. She referenced the fact that her front teeth were knocked out by her husband, and that she wanted to help people. She followed that up with her position that she can be fair.

"Juror No. 5's failure to disclose this information during the voir dire process, and her inability to follow two of the most basic jury instructions, which, frankly, go to the heart[] of the integrity of the jury deliberation process, makes it impossible for the Court to find that Juror No. 5 is performing her duty as a juror in these proceedings.

"In summary, the Court finds that it is a demonstrable reality that Juror No. 5 is unable to [perform] her duties as a juror pursuant to Penal Code Section 1089, and that she has chosen not to follow the jury instructions referenced in this decision[;] [h]as referenced a personal relationship with an inmate during the jury deliberation process, which has inserted issues related to bias and sympathy into the proceedings[;] [h]as referenced punishment, which is a direct violation of the jury instructions as given to the jurors[;] [h]as affected the integrity of the jury deliberation process by her actions[;] [h]as demonstrated an inability to follow the instructions of the Court which, from the Court's perspective, makes any admonition by the Court to Juror No. 5 to be futile[;] [a]nd the credibility of Juror No. 5, in light of the totality of the circumstances, is extremely suspect, in that it raises concerns about the ability of Juror No. 5 to be fair and impartial. [¶] Both sides have a right to a fair and impartial trial." The court then discharged Juror No. 5.

The reconstituted jury deliberated on February 24 and 25, 2016, before returning its verdicts.

5. Legal standards

The trial court may discharge a juror at any time, upon "good cause shown to the court," if the juror "is found to be unable to perform his or her duty." (§ 1089; see People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax).) " 'In determining whether juror misconduct occurred, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." ' [Citations.]" (People v. Linton (2013) 56 Cal.4th 1146, 1194.) The ultimate decision to discharge a juror is a matter within the trial court's discretion. (Lomax, supra, at p. 589.) However, " 'a somewhat stronger showing' than is typical for abuse of discretion review must be made to support such decisions on appeal. [Citation.]" (Ibid.) "[T]he basis for a juror's disqualification must appear on the record as a 'demonstrable reality.' This standard involves 'a more comprehensive and less deferential review' than simply determining whether any substantial evidence in the record supports the trial court's decision. [Citation.] It must appear '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.' [Citation.] However, in applying the demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is whether 'the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' [Citation.]" (Id. at pp. 589-590, fn. omitted.)

6. Analysis

Defendant contends that the trial court abused its discretion in discharging Juror No. 5 because there is no evidence to support the court's stated reasons for discharging the juror. We are not persuaded by defendant's arguments.

First, defendant contends that there was no evidence to support the trial court's conclusion that Juror No. 5 violated the jury instruction prohibiting consideration of punishment.

"[A] juror is required to apply the law as instructed by the court, and refusal to do so during deliberations may constitute a ground for discharge of the juror. [Citation.]" (People v. Engelman (2002) 28 Cal.4th 436, 443.) "[I]n cases not involving the death penalty, it is settled that punishment should not enter into the jury's deliberations. [Citations.]" (Id. at p. 442.) In this case, the jury was instructed pursuant to CALCRIM No. 3550 that it must reach its verdict "without any consideration of punishment." Without such an instruction, the jury might improperly "permit their consideration of guilt to be deflected by a dread of seeing the accused suffer the statutory punishment." (People v. Shannon (1956) 147 Cal.App.2d 300, 306 [analyzing former CALJIC No. 9]; see id. at p. 306, fn. 3; accord, People v. Nichols (1997) 54 Cal.App.4th 21, 24.)

In this case, the jury foreperson's note regarding Juror No. 5 stated that the juror "expresses great concern over potential sentencing."

The foreperson subsequently explained to the trial court that Juror No. 5 referred to the need to make sure that the jury did not do anything to ruin the life of defendant, who was a young person. The foreperson told Juror No. 5 that the jury needed to determine what it thought about the case and determine what happened. Juror No. 5 proceeded to talk about the death penalty.

The foreperson further indicated to the trial court that Juror No. 5 talked about sentencing more than once. On one of the occasions, upon being told by the foreperson that the jury was not to consider sentencing, that this was the court's job and not the jury's, and that the jury needed to focus on its own role, Juror No. 5 stated, " 'I know I'm not supposed to be sympathetic. I can't feel sorry, but I do. This is terrible.' "

Juror No. 5 admitted to the trial court that the jury had been instructed not to consider sentencing. When the court asked whether she had any discussion about sentences in the case, the juror did not deny that she did. Instead, she stated that she "questioned it," that she was told by other jurors that the judge had instructed them to not consider it, and that she "understood that point and moved on." When asked why she brought up sentencing during deliberations, Juror No. 5 referred to her own "stormy life," her "instinct" to help others going through "difficulty," and her "heart go[ing] out" to such people. She stated, "I don't know how I could change that inside of me." However, she stated that she "will be trying to do [her] best to be fair to everybody," and that she followed the instructions regarding evidentiary proof and giving the defendant the benefit if there was a conflict in the evidence.

Juror No. 5's violation of the jury instruction prohibiting consideration of punishment was shown to a " 'demonstrable reality' " by the note signed by the foreperson on behalf of the other jurors, as well as the foreperson's subsequent statements to the trial court. (Lomax, supra, 49 Cal.4th at p. 589.) Juror No. 5 herself admitted to the court that she discussed sentencing even though she knew the jury had been instructed not to consider sentencing. Further, both the foreperson's and Juror No. 5's statements to the court indicated that Juror No. 5's discussion of sentencing in deliberations arose out of her feeling "sympathetic," her "heart go[ing] out," and an "instinct[ual]" desire to help someone such as defendant who had gone through "difficulty." Based on this record, we do not believe that Juror No. 5 complied with the jury instruction prohibiting the consideration of punishment during deliberation.

Second, defendant contends that Juror No. 5's failure to disclose domestic violence by her husband in the jury questionnaire did not establish that she was unable to perform her duties as a juror and thus did not justify her discharge from the jury.

The trial court did not expressly state that it was discharging Juror No. 5 based on her failure to disclose domestic violence. At the end of its ruling, the court summarized the reasons for its conclusion that Juror No. 5 was unable to perform her duties as a juror. Those reasons were that Juror No. 5 "chose[] not to follow the jury instructions," she "referenced a personal relationship with an inmate during the jury deliberation process, which . . . inserted issues related to bias and sympathy into the proceedings," she "referenced punishment, which is a direct violation of the jury instructions," she "affected the integrity of the jury deliberation process by her actions," she "demonstrated an inability to follow the instructions of the Court," and her credibility "in light of the totality of the circumstances" was "extremely suspect, in that it raise[d] concerns about the ability of Juror No. 5 to be fair and impartial."

The trial court's finding that Juror No. 5 had earlier intentionally failed to disclose information on the jury questionnaire was relevant to the court's determination of Juror No. 5's credibility and her ability to follow instructions. Juror No. 5's credibility and ability to follow instructions were in turn relevant to whether she followed certain jury instructions during deliberation, whether she had engaged in conduct that affected the integrity of the jury deliberation process, whether she could be fair and impartial, and ultimately whether she was able to perform her duties as a juror.

We are not persuaded by defendant's arguments that Juror No. 5's failure to disclose the battery, which defendant himself characterizes as a "violent interaction," in response to a question about whether she had been the victim of a crime, might have been due to Juror No. 5 believing that being battered and having all her front teeth knocked out was not a "crime" or due to the husband not having been charged or convicted. There was no evidence to support these inferences. Moreover, as the trial court observed, in contrast to the car burglary that Juror No. 5 disclosed on the questionnaire, "having your husband knock your teeth out . . . is a little more than a car burglary." The court could reasonably infer that Juror No. 5's failure to disclose was intentional, where it involved a significant incident such as being battered and having front teeth knocked out.

Third, defendant contends that Juror No. 5's "discipling" relationship with an inmate did not justify her dismissal.

" 'Jurors cannot be expected to shed their backgrounds and experiences at the door of the deliberation room.' " (People v. Allen and Johnson (2011) 53 Cal.4th 60, 76.) " 'Jurors' views of the evidence . . . 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.' " (Ibid.) Further, " '[a] sitting juror's actual bias, which would have supported a challenge for cause, renders him [or her] "unable to perform his [or her] duty" and thus subject to discharge and substitution . . . .' [Citation.]" (Lomax, supra, 49 Cal.4th at p. 589.) In this case, the jury was instructed pursuant to CALCRIM No. 200 to "not let bias, sympathy, prejudice, or public opinion influence your decision."

As we have just explained, Juror No. 5 was dismissed for several reasons and not solely because of the "discipling" relationship. Further, the trial court found that the relationship involving an inmate was significant because the juror had brought it up during jury deliberations and, despite her statements to the contrary to the court and the other jurors, she had not previously disclosed that relationship on the jury questionnaire.

Specifically, the foreperson's note stated that Juror No. 5 "admits bias/sympathy with the defendant due to a relationship with an inmate." The foreperson subsequently explained that Juror No. 5 during deliberations "started talking about the fact that she volunteers in a jail and counsels or talks to people" and for that reason she was "sympathetic . . . to people." The other jurors did not recall the inmate relationship being disclosed during voir dire but accepted Juror No. 5's claim that she had disclosed it to the court on the jury questionnaire.

In response to the trial court's inquiry, Juror No. 5 admitted to having "confessed" to other jurors about her relationship with jail inmates. She admitted that it was "bad" and "wrong" to have been "sharing" the information with other jurors, which involved her "discipling an inmate." Juror No. 5 also admitted that other jurors told her not to "insert that" jail relationship into deliberations. When the court asked whether she was "able to not insert it, or did it insert in [her] mind," she stated, "That, I couldn't tell. Even psychologists, I don't believe they can tell." She subsequently stated that she "didn't insert" the issue "with this case," or at least "d[id]n't think [she] did." She continued to claim that she disclosed the relationship on the jury questionnaire.

We conclude that Juror No. 5's inability to perform her duties as a juror due to bias was shown to a " 'demonstrable reality' " by the note signed by the foreperson, the foreperson's subsequent statements to the trial court, and Juror No. 5's own admissions to the trial court. (Lomax, supra, 49 Cal.4th at p. 589.) As the court explained, Juror No. 5, "referenced a personal relationship with an inmate during the jury deliberation process, which . . . inserted issues related to bias and sympathy into the proceedings." The "problem [was] compounded by Juror No. 5's reference to the death penalty," which also indicated that the juror did not have the ability to be neutral during deliberations. The juror's conduct violated jury instructions prohibiting bias and sympathy from influencing deliberations and from considering punishment. The juror was aware of these instructions or otherwise knew that her discussions of the inmate relationship and punishment during deliberation was improper. When the court asked whether she was able to put her inmate relationship aside, her initial response was equivocal. Although she subsequently claimed that she "didn't insert" the issue "with this case," or at least "d[id]n't think [she] did," the court was not required to accept the juror's less-than-convincing statements. "[T]rial courts are frequently confronted with conflicting evidence on the question whether a deliberating juror has exhibited a disqualifying bias. [Citation.] '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 circumstances, the trial court must weigh the credibility of those testifying and draw upon its own observations of the jurors throughout the proceedings. We defer to factual determinations based on these assessments. [Citation.]" (Lomax, supra, 49 Cal.4th at p. 590.) Given the juror's acknowledgment of the jury instructions and her admissions that she knew her discussions were wrong, the court had an ample factual basis for determining that "no matter how well intentioned," Juror No. 5 did not have the ability to follow the instructions prohibiting bias, sympathy, and consideration of punishment. Defendant fails to demonstrate error in the court's discharge of Juror No. 5.

IV. DISPOSITION

The judgment is affirmed.

/s/_________


BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.