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E067755 (Cal. Ct. App. Nov. 7, 2018)



THE PEOPLE, Plaintiff and Respondent, v. DENNIS GRIFFIN PEASE, Defendant and Appellant.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Meredith White, and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1203411) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Meredith White, and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted defendant and appellant, Dennis Griffin Pease, of the first degree murder of Willard Eichler. The court sentenced defendant to 25 years to life in prison. He advances two primary arguments on appeal: (1) the court should have dismissed this case because it violated the bar against multiple prosecutions under Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett); and (2) the court violated his constitutional rights by removing a deliberating juror and replacing her with an alternate. We reject both arguments and affirm. An earlier prosecution of defendant for felon in possession of a firearm did not bar this murder prosecution because the offenses arose from different courses of conduct. Furthermore, the court properly discharged the deliberating juror for her inability or unwillingness to follow jury instructions.


In 2005, Eichler lived out of his car in Fresno, California. At night, he parked the car at a tow yard owned by Sladen Wood. Eichler watched over the yard at night and kept it clean for Wood.

An officer with the Fresno Police Department stopped defendant on October 3, 2005, in Fresno. Defendant told the officer he had been in California since January 2005, and he had pawn records establishing he had been in Fresno at that time.

Wood was familiar with defendant because he had seen defendant on the streets and at a fast food restaurant where homeless people congregated, including sometimes Eichler. Wood heard defendant say "some pretty vulgar remarks towards gay people" at the restaurant. Two men walked in holding hands, and defendant said: "'If I had a chance, I'd kill every cock sucker and cunt licker on this earth.'"

Several weeks after this incident, in October or November 2005, Wood saw defendant at the tow yard with Eichler. Eichler was gay. Eichler told Wood that he knew defendant "from the street." Wood did not notice any animosity between Eichler and defendant. Eichler often gave rides to the homeless people around the area. Wood last saw Eichler at the tow yard on November 4, 2005. He never heard from Eichler again after that date.

On November 11, 2005, a cyclist found Eichler's body in a remote area of Wrightwood, California. Eichler was near an area where gay men "were known to hook up," according to the responding homicide detective. His body showed signs of decomposition. He had a hole below the ear in the back of his head, two holes on his left thigh, scrapes on his left hand, and scrapes on his left rear shoulder consistent with dragging. The dirt in the area had blood and drag marks in it.

A forensic pathologist conducted Eichler's autopsy on November 15, 2005. The pathologist could not determine Eichler's cause of death. The holes on Eichler's thigh were superficial wounds. The hole below his ear was a penetrating wound approximately three inches deep. A sharp object or gunshot could have caused the wound. But X-rays of the body revealed no bullets or bullet fragments, and there was no exit wound. The hemorrhaging in the muscles along the wound track went through the neck toward the spinal cord. There was no damage to the spinal cord itself and no damage to any major blood vessels. Eichler's body had been decomposing for several days by the time the cyclist found him. The slippage of the skin caused by decomposition made it difficult to determine the shape of the object that might have caused the wound. The wound was nonfatal, unless Eichler had bled out. If Eichler had lost a lot of blood, at least one and a half pints in a short period of time, the blood loss could have caused his death.

Eichler's internal organs revealed no evidence of significant disease that might have caused his death, and there was no evidence of forceful smothering, strangulation, or beating. He had alcohol in his urine but no illegal drugs in his system. Although the pathologist could not pinpoint Eichler's manner of death, he opined that the circumstances of how the body was found "were highly suspicious and would be consistent with homicide."

After the autopsy, on November 20, 2005, officers in Ontario, California located Eichler's car. Defendant was driving the vehicle and said he had bought it two weeks ago from "Will," who was supposed to mail the pink slip to him. Officers found a hunting knife on defendant. The knife was not consistent with Eichler's penetrating wound; it did not match the diameter of the wound. Among other things in the car, the officers found a loaded gun on the front passenger floorboard, a fired cartridge casing on the rear passenger floorboard, Eichler's expired license, and a credit card in Eichler's name. In the trunk, they found a substantial amount of blood. The mat in the trunk was stained with it, and the blood had soaked through the quarter-inch thick mat to the metal part of the trunk underneath it. The crime scene specialist who processed the car estimated there was anywhere from one to four pints of blood in the trunk. DNA testing revealed that the blood in the trunk matched Eichler.

Eichler's sister and Wood also referred to Eichler as "Will."

Seven years after these events, in November 2012, detectives with the cold case homicide detail contacted defendant. The detectives found him in Florida and flew him back to California. At the airport, defendant told one of the detectives that a man was acting suspiciously because the man kept looking at defendant and the detective. The detective did not think the man was suspicious and commented offhandedly: "Maybe he likes you." Defendant replied: "Better not be. He'd get an ass whipping for that." Defendant seemed genuinely upset. He said "he had a whole line of witnesses that could attest that he was not gay."

The detectives interviewed defendant once they arrived in California. Defendant denied knowing Eichler, denied being at Wood's tow yard, and denied living in Fresno. He said he had Eichler's car in 2005 because he was going to purchase it from a man in Ontario. He did not know the man's name and never had the chance to pay the man. He had come directly from Texas, where he had been living, to Ontario for work. The detectives confronted defendant with his 2005 statement that he had purchased the car from Eichler. He responded that the officer to whom he had said that "was tricky and had changed the words on him."


A. The Court Did Not Err in Denying Defendant's Motion to Dismiss

Defendant contends the court should have granted his motion to dismiss the murder charges under Kellett. He asserts that he was arrested for Eichler's murder in 2005, but was charged with and pleaded only to felon in possession of a firearm. After the cold case detectives reopened the case in 2012, officers again arrested him for Eichler's murder, and the instant prosecution took place. Defendant argues both offenses—murdering Eichler and possessing a firearm—arose from the same course of conduct and had to be prosecuted in a single proceeding pursuant to Kellett. We reject this argument. The offenses arose from different courses of conduct and were divisible for purposes of prosecution.

1. Background

In August 2012, the People filed the first amended felony complaint charging defendant with the murder of Eichler. Defendant filed his Kellett motion in August 2013. Neither defendant nor the People submitted any evidence of the prior prosecution for possession of a firearm, such as the charging document, the preliminary hearing transcript, his plea hearing transcript, or the abstract of judgment. But both parties asserted in their memoranda of points and authorities that defendant was charged with and pleaded guilty to felon in possession of a firearm in 2006, after police found him in Eichler's car with a gun. And defense counsel's declaration stated: "I have reviewed the police reports for the [instant] case. They are the same reports used in Defendant's original case in 2005."

The People filed a motion to augment the record on appeal with the reporter's and clerk's transcripts in the earlier prosecution for felon in possession of a firearm (San Bernardino County Superior Court case No. FSB053185), which had not yet been prepared. We denied the motion without prejudice to the People submitting a citation to the record showing that the trial court in this case had reviewed the records from the earlier prosecution. The People submitted no such citation.
In preparation for sentencing, the probation officer's report indicated defendant was arrested on November 21, 2005, for murder but convicted of felon in possession of a firearm (Pen. Code, former section 12021, subd. (a)(1); all further statutory references are to the Penal Code), and sentenced to two years in state prison.

Defendant's motion argued Kellett's bar against multiple prosecutions precluded this murder prosecution because "[b]oth prosecutions arose out of the defendant's alleged continuous possession and use of a gun around November 15, 2005." The People opposed the motion, arguing that the multiple-prosecutions bar did not apply because the offenses did not constitute the same course of conduct, as required by Kellett. The court denied defendant's Kellett motion and ruled that the firearm offense "was a separate act or course of conduct."

2. Analysis

Kellett is the seminal case interpreting section 654's ban on multiple prosecutions. The Kellett defendant pleaded guilty to exhibiting a firearm in a threatening manner (§ 417) and then moved to dismiss the information in a second case charging him with possession of a concealable weapon by a felon (former § 12021; Kellett, supra, 63 Cal.2d at p. 824). Both offenses were based on an incident in which he "was standing on a public sidewalk with a pistol in his hand." (Kellett, supra, at p. 824.) To avoid needless harassment of defendants and the waste of public funds, our high court concluded that "some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively." (Id. at p. 827.) Specifically, when "the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Ibid.)

Section 654, subdivision (a) states: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (Italics added.) --------

California courts have adopted two tests to determine whether "the same act or course of conduct plays a significant part" in multiple offenses. (Kellett, supra, 63 Cal.2d at p. 827; People v. Ochoa (2016) 248 Cal.App.4th 15, 28.) "Under one line of cases, multiple prosecutions are not barred if the offenses were committed at separate times and locations." (People v. Ochoa, supra, at p. 28.) This is the "'time and place test.'" (Id. at p. 29.) "A second version of the test—the 'evidentiary test'—looks to the evidence necessary to prove the offenses. [Citation.] '[I]f the evidence needed to prove one offense necessarily supplies proof of the other, . . . the two offenses must be prosecuted together, in the interests of preventing needless harassment and waste of public funds.' [Citation.] 'The evidentiary test . . . requires more than a trivial overlap of the evidence. Simply using facts from the first prosecution in the subsequent prosecution does not trigger application of Kellett.'" (Ibid.)

As the moving party, the defendant bears the burden of producing evidence to support his or her Kellett motion. (People v. Ochoa, supra, 248 Cal.App.4th at p. 29, fn. 3.) We review any factual determinations by the court for substantial evidence. (People v. Valli (2010) 187 Cal.App.4th 786, 794.) Whether multiple prosecutions are barred is a legal question we review de novo. (Ibid.)

Under either the time and place test or the evidentiary test, this murder prosecution was not barred. As to the time and place test, Eichler's murder occurred sometime between November 4, 2005, when Wood last saw him, and November 11, 2005, when the cyclist discovered his body in Wrightwood. Nine days after the discovery of Eichler's body, on November 20, 2005, the police found defendant driving Eichler's car in Ontario. Defendant happened to have a gun in the car. The murder and firearm possession were thus separated by many days and many miles and arose from distinct courses of conduct. (People v. Douglas (1966) 246 Cal.App.2d 594, 599 [holding the defendants had "no legal cause to complain" when they were first prosecuted for murder and later prosecuted for robberies and assaults that occurred prior to the murder]; People v. Cuevas (1996) 51 Cal.App.4th 620, 624 ["Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding."].)

The evidentiary test also reveals the offenses arose from distinct courses of conduct. The evidence needed to prove the firearm offense did not necessarily supply proof of the murder, and vice versa. The elements of felon in possession of a firearm are "conviction of a felony and ownership or knowing possession, custody, or control of a firearm." (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052.) The evidence relevant to this offense was that defendant was driving a car, which he claimed to have recently purchased, and a gun was on the passenger floorboard next to him, showing he had "dominion and control" over the gun. (Ibid.) The officers' reason for stopping defendant, and the fact that the reported owner of the car had recently turned up dead, were irrelevant for purposes of proving this offense. And, the evidence needed to prove defendant's possession of the gun in no way supplied proof that he had murdered Eichler. Indeed, the evidence at the murder trial ruled out a gunshot wound as the cause of Eichler's death. Eichler had no bullets or bullet fragments in his body, and there was no bullet exit wound. The evidence needed to prove defendant murdered Eichler was, instead, as follows: Defendant had been seen with Eichler shortly before Eichler disappeared; defendant had expressed extremely homophobic views and a desire to kill or violently harm members of the gay community; Eichler was gay; substantial blood loss from a three-inch deep wound may have caused Eichler's death; defendant was driving Eichler's car but had no proof that he had purchased it, as claimed; and law enforcement found a substantial amount of Eichler's blood in the trunk of the car. Defendant's possession of a gun was unnecessary to prove the murder. (E.g., People v. Valli, supra, 187 Cal.App.4th at p. 800 ["[T]he evidence needed to prove murder—that defendant was the shooter—did not supply proof of evading."].) In short, the evidence demonstrated defendant murdered Eichler by some means other than a gunshot, and many days later, he had a gun in his custody—these were two different courses of conduct.

Defendant, focusing on the evidentiary test, argues "[w]ere it not for [defendant]'s connection to the car, neither prosecution would have been possible" because the charges "stemmed from the same arrest and search." Something more than a mere overlap of witnesses or the mention of common facts is required to trigger the Kellett rule. (People v. Valli, supra, 187 Cal.App.4th at pp. 799-800.) The critical question is not whether law enforcement unearthed evidence of the two crimes during the same search of a person, car, home, or other structure. Evidence of multiple yet unrelated crimes may be found in the same place. "[W]hat is relevant for Kellett purposes are 'the facts of defendant's conduct underlying the charged offenses,'" and whether the conduct necessary to prove one offense supplies proof of the other. (People v. Linville (2018) 27 Cal.App.5th 919, 932-934 [holding a prosecution for being an accessory after the fact to murders did not involve the same course of conduct as the defendant's later prosecution for the same murders].) The answer to that was affirmative in Kellett, where the prosecutions for exhibiting a firearm in a threatening manner and possessing a concealable weapon by a felon arose from the same conduct—the defendant standing on a sidewalk with a pistol in his hand. (Kellett, supra, 63 Cal.2d at p. 824.) But this case fails that evidentiary test.

Defendant's reliance on Barriga v. Superior Court (2012) 206 Cal.App.4th 739 is misplaced. In Barriga, a police officer stopped a stolen car in which Barriga was a passenger. (Id. at p. 742.) The perpetrators had carjacked the victim four hours earlier, but the victim declared that Barriga was not one of the carjackers. (Id. at pp. 742-743.) After the district attorney filed a wardship petition against him, Barriga admitted to resisting a peace officer (the officer who had stopped the car). (Id. at p. 743.) Several weeks later, the investigating officer discovered text messages on Barriga's phone implicating him in the carjacking, and the district attorney filed a criminal complaint charging him with robbery and carjacking. (Id. at pp. 743-744.) The court noted there was "no dispute" that Barriga's "alleged participation in the robbery and carjacking and his later conduct in resisting the police when [the officer] stopped the stolen car were part of the same 'course of conduct.'" (Id. at p. 747.) The court did not analyze any further whether the multiple prosecutions arose from the same course of conduct. Rather, the only issue on appeal was whether an exception to the Kellett rule applied. (Barriga v. Superior Court, supra, at pp. 742, 747.) Even when offenses arise from the same course of conduct, an exception allows the People to prosecute them separately when "the prosecutor '"'is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.'"'" (People v. Davis (2005) 36 Cal.4th 510, 558.) The Barriga court held there was no substantial evidence to support the implied finding of due diligence by the prosecution. (Barriga v. Superior Court, supra, at p. 748.) The People had not explained why they could not have discovered the incriminating text messages earlier. (Ibid.)

Unlike the Barriga court, we are not concerned with the due diligence exception to the Kellett rule, but with the threshold question of whether the Kellett rule should apply at all. We do not find Barriga, which did not truly analyze the threshold issue, persuasive or helpful on this point. Defendant's two crimes—possessing a firearm and murdering Eichler by means other than the firearm—did not involve the same course of conduct under either the time and place test or the evidentiary test. Prosecutors need not try a defendant simultaneously for known crimes that are unrelated to one another simply to guard against the possibility of harassment. (People v. Douglas, supra, 246 Cal.App.2d at p. 599.) Kellett and section 654 did not bar the multiple prosecutions here, and the court properly denied defendant's motion to dismiss. B. The Court Did Not Err in Discharging a Deliberating Juror for Failure to Follow Jury Instructions

Defendant argues the court violated his constitutional rights by removing a deliberating juror, Juror No. 5. He contends there was no "demonstrable reality" that she could not perform her duty as a juror. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) He also maintains the court abused its discretion in denying his motion for new trial on the same grounds. We disagree on both counts. The court properly excused Juror No. 5 for failure to follow jury instructions.

1. Background

The day after the jury began deliberating, the foreperson sent a note to the court stating Juror No. 5 had requested that an alternate take her place. When the court asked Juror No. 5 why she wanted to be replaced, she replied: "To go with my conscience and live with it, and, um, I want to be fair and I can't be persuaded and I don't want to break the law. I don't know how else to answer this. I don't mind staying on, but I don't know what kind of results you would get then." The court asked what she meant by "laws being broken," and she said, "The rules you gave us." She further explained: "Like if I feel like I don't have 100 percent proof of something, and I'm the type of person that I need factual proof." The court advised her that she did not need "100 percent proof," but proof beyond a reasonable doubt. She replied: "Right. I mean, I have doubt, okay? . . . [¶] . . . [¶] . . . I can't vote a certain way, because I couldn't live with that verdict." The court re-read the jury instruction on reasonable doubt (CACLRIM No. 220) to Juror No. 5. She indicated she understood it and could follow it, and the court returned her to the jury room.

The next day of deliberations, the jury said that it had a verdict, but the foreperson also sent a note stating: "I would like to let you know that Juror #5 was considering the sentencing and the severity of the charges into her decision. We informed Juror #5 that we cannot take sentencing or severity of the crime into consideration." The jurors were instructed both pretrial and predeliberations that they "must reach [a] verdict without any consideration of punishment." (CALCRIM Nos. 101, 3550; see also People v. Nichols (1997) 54 Cal.App.4th 21, 24 [holding that the instruction to not consider penalty or punishment was "unquestionably correct."].)

The court looked at the verdict forms and discovered the jury had rendered a verdict on second degree murder but not on first degree murder, in violation of the jury instructions. (CALCRIM No. 640.) The court advised the jury that it had to find defendant guilty or not guilty of first degree murder, or decide that it could not reach a decision on first degree murder, before the court could accept a verdict on second degree murder. It thus sent the jury back to deliberate.

The court then received another note from the foreperson, reading: "Juror No. 5 has changed her mind on the decision she has previously made." The court called the foreperson into the courtroom and asked if he could elaborate on the notes. The foreperson explained: "There were a few instances where [Juror No. 5] said that she would not be able to convict on first-degree murder due to us not knowing how long he would be in prison for. She had also stated just now while we were there that she changed her mind on the decision due to you sending us back. And she said, and I quote, 'I know the Judge knows more than we do.' Which is why she took back her previous decision." The foreperson also indicated that Juror No. 5 "said that she would be comfortable with sentencing on second degree, not first degree, due to the severity of it. And she would just flip-flop back and forth from agreeing on the second degree and then going to not guilty." The foreperson said she "discussed the sentencing factors" at least four or five times. After the first time, the other jurors told her they could not consider punishment in their deliberations, and she continued to bring it up.

The court then questioned each of the other jurors individually about whether they heard anyone "discussing penalties or punishment" during deliberations. They responded as follows:

Juror No. 2: The jurors had to explain to Juror No. 5 that she could not consider penalty or punishment. This happened "maybe" twice.

Juror No. 3: Juror No. 5 brought up penalty or punishment as a factor in her deliberations. She said "she couldn't do it because it was too much—it's a serious punishment and she had a friend that was brutally beaten." She brought up penalty or punishment more than four times, even though after the first time, the other jurors told her they were not supposed to consider punishment.

Juror No. 4: Juror No. 5 talked about penalty or punishment "a lot" as a consideration, and the other jurors were "pretty quick to tell her . . . that shouldn't be a consideration." The first time she mentioned it, she said, "this is a man's life and he could be sent away to jail for the rest of his life if we don't—so we should think about it carefully, we should be sure, we should be certain, things of that nature." She brought up punishment three or so more times after that.

Juror No. 6: Juror No. 5 discussed penalty or punishment "[m]aybe once or twice." The other jurors said they could not discuss the issue.

Juror No. 7: Juror No. 5 discussed penalty or punishment as a factor in her decisionmaking two to three times. The first time, she said "first-degree murder is a big charge, that it could be life." The other jurors told her they could not "think about the consequences of each degree." Even after that, "she kept bringing up that it could be life, it could be a very long time."

Juror No. 8: Juror No. 5 brought up penalty or punishment as a consideration "so many times." She said she couldn't "give someone life." The foreperson read the court's instruction to her and the group asked her not to consider it, but she continued to bring it up.

Juror No. 9: Juror No. 5 mentioned penalty or punishment as a factor for consideration "[n]umerous times"—maybe five or more times. The others advised her they could not consider any type of punishment, and she continued to bring it up after that.

Juror No. 10: Juror No. 5 was concerned about punishment. She said "she wouldn't be able to have the defendant put in prison for, you know, a long time or death . . . ." The others responded, "We don't make that decision." She brought up punishment again a few more times, saying she "didn't want to have to live with herself, pretty much."

Juror No. 11: Juror No. 5 said she did not "want to say first degree because it might lead to a death sentence." The other jurors told her they could not consider that, and she did not bring it up again.

Juror No. 12: The other jurors told Juror No. 5 "many times" that they could not consider the severity of the sentence when making their decision. But this juror maintained that Juror No. 5 did not mention penalty or punishment, and this juror did not know why the others were admonishing Juror No. 5 not to consider punishment. At the same time, this juror acknowledged that Juror No. 5 was worried about "the first degree, . . . the consequences," and she said "she couldn't convict someone of first degree and she wasn't looking at the evidence."

After talking to these 11 jurors, the court questioned Juror No. 5. Juror No. 5 acknowledged that she had mentioned the death penalty and also that defendant might receive a life sentence, but she asserted these things were not her focus, and the foreperson had misinterpreted her comments about punishment. She noted: "It's just talking. I mean—I'm sorry, I don't do things black and white. I'm an artist and I do other things. I know here you have to do black and white and get to the point. And I—there's a lot of things to think about, but that wasn't my focus and how I would judge."

Juror No. 5 returned to the jury room, and the court announced its tentative decision to remove her for cause. The court explained: "Juror No. 12 was not very responsive, but the other remaining jurors all stated that [on] multiple occasions she brought up punishment or penalty. The record expresses what she said and she was advised multiple times not to bring that up and she did." Defense counsel argued punishment was not Juror No. 5's focus, and "she didn't mean it as far as it affecting her decision." The prosecutor argued this was the second time Juror No. 5 had difficulty following the instructions; the day before she said that she needed "100 percent proof" to convict, and the court had to re-explain the reasonable doubt standard. The court adopted its tentative decision as its ruling, excused Juror No. 5, and replaced her with an alternate.

2. Analysis

Section 1089 permits the court to discharge a juror at any time when the court finds the juror "unable to perform his or her duty." "[J]urors are required to follow the trial court's instructions." (People v. Williams (2001) 25 Cal.4th 441, 451.) Those who are unable or unwilling to follow the court's instructions are unable to perform their duty within the meaning of section 1089, and the court does not violate the defendant's constitutional right to a jury trial by excusing such jurors. (People v. Williams, supra, at pp. 448-449.)

We review the court's decision to discharge a juror for abuse of discretion. (People v. Williams, supra, 25 Cal.4th at p. 448.) "While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care." (People v. Barnwell, supra, 41 Cal.4th at p. 1052.) The juror's inability to perform his or her duty should appear in the record as a "demonstrable reality." (Ibid.) The demonstrable reality standard is more comprehensive and less deferential than the substantial evidence standard. (Ibid.) Substantial evidence review "examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question." (Ibid.) By contrast, the demonstrable reality standard "requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [the juror's disqualification] was established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied." (Id. at pp. 1052-1053.)

Often, the evidence bearing on whether the juror is unable to perform his or her duty may be in conflict. (People v. Barnwell, supra, 41 Cal.4th at p. 1053.) Under questioning by the court, the identified juror may deny it, while other jurors may testify about how the identified juror has revealed an inability to perform. (Ibid.) The trial court is entitled to weigh the credibility of the jurors, "taking into account the nuances attendant upon live testimony. The trial court may also draw upon the observations it has made of the jurors during voir dire and the trial itself. Naturally, in such circumstances, we afford deference to the trial court's factual determinations, based, as they are, on firsthand observations unavailable to us on appeal." (Ibid.)

In this instance, we have no question that Juror No. 5's unwillingness or inability to follow the instructions appears in the record as a demonstrable reality. The court instructed the jurors that they had to reach a verdict without considering punishment. All but one of the other jurors declared that Juror No. 5 had brought up punishment during deliberations. More significantly, Juror No. 5 acknowledged that she did so, although she insisted that punishment was not her focus. According to many of the jurors, the essence of her comments was that she could not convict defendant of first degree murder because she could not countenance sentencing someone to prison for life or to death. And according to many of them, she raised the issue several times, even after the others had admonished her not to do so. The one juror who declined to say she that she brought up punishment, Juror No. 12, said instead that Juror No. 5 was worried about "the first degree, . . . the consequences," and that "she couldn't convict someone of first degree and she wasn't looking at the evidence." Even these comments—referring to the "consequences" of the conviction—came awfully close to expressly discussing punishment. The trial court was entitled to credit the nearly unanimous testimony of the jurors that Juror No. 5 was considering punishment in her deliberations, in contravention of the instructions. The court made clear on the record that it based its decision on this evidence. We are, therefore, "confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied" (People v. Barnwell, supra, 41 Cal.4th at p. 1053), and it did not abuse its discretion in discharging Juror No. 5 for failure to follow jury instructions (People v. Williams, supra, 25 Cal.4th at pp. 448-449).

Because the court did not err, neither did it deny defendant a fair trial, and the court did not abuse its discretion by denying his nonstatutory motion for new trial on this same ground. (People v. Davis (1973) 31 Cal.App.3d 106, 109 ["[N]ew trials are frequently granted on nonstatutory grounds where the failure so to do would result in a denial of a fair trial to a defendant in a criminal case."].)


The judgment is affirmed.



J. We concur: RAMIREZ



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