1

Filed 1/25/16 P. v. Hughes CA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

OTIS HUGHES,

Defendant and Appellant.

 A141243

 (San Francisco City & County

 Super. Ct. No. CT2397734)

I.

INTRODUCTION

In 2013, a jury found that appellant Otis Hughes committed a first degree murder 

in 1991. Appellant contends that the trial court committed reversible errors during that

jury trial by (1) refusing to declare a mistrial after a prospective juror was excused for 

discriminatory reasons; (2) admitting the victim’s autopsy report into evidence under the

official record exception to the hearsay rule; and (3) replacing a holdout juror with an 

alternate after the jury had deliberated for five days. We find it unnecessary to address 

appellant’s first two claims of error because we conclude that the erroneous removal of a 

deliberating juror requires us to reverse the judgment.

II.

STATEMENT OF FACTS

A. The 1991 Murder

On Wednesday evening, February 27, 1991, Karen Wong was found dead in her 

home in San Francisco’s Richmond District. Karen’s body was discovered by her brother 
2

Dale, who went to look for her at the request of her boyfriend Steven Halpern, who had 

been unable to contact her by phone.

1

 When Dale arrived at Karen’s home, her lights 

were on but she did not answer the door, so he retrieved a set of spare keys from his 

parents, who had accompanied him back to Karen’s flat. The family could not get in 

through the front door because it was chained. With assistance from Karen’s downstairs 

neighbor, Dale broke into her flat through a back door.

Karen was found on the floor under a blanket in a room she used as a study. Her 

lower body was unclothed and her hands and feet had been bound with an extension cord 

and an electrical cord from an iron. A serrated kitchen knife was lodged in her abdomen. 

Pants, underwear, and stockings were in a clump close by.

The police did not find any damage to Karen’s doors that Dale had not caused. 

Lights were on, classical music was playing, and a bathroom window was opened. The 

home appeared to have been ransacked; there were opened drawers and jewelry boxes, a 

knocked over plant, and items strewn everywhere. The contents of Karen’s purse had 

been dumped on the dining room table and the telephone cord in the kitchen had been 

cut. The police also found an unwrapped condom hanging over the side of a trashcan 

next to the bed in Karen’s bedroom.

An autopsy was performed by the city’s chief medical examiner, Dr. Boyd 

Stephens. The autopsy, which included a written report, photographs, pathology tests,

and a sexual assault examination, documented a violent death. Karen’s hands were 

swollen and discolored by the ligatures. She had petechiae (dot-like hemorrhages) over 

the surface of her eyes, and a horizontal mark encircling her neck, both indications that 

she had been strangled. Karen had been stabbed in the abdomen nine times with a 

serrated knife. Two of those wounds caused significant internal injuries. The report of 

the sexual assault exam detailed findings of a large amount of white fluid, large numbers 

of sperm, and vaginal injuries.

 

1

 For clarity, we refer to members of the Wong family by their first names. No 

disrespect is intended.
3

Before their investigation stalled, the police identified Karen’s boyfriend, Steven 

Halpern, as a possible suspect. After Dale found his sister’s body, he called Halpern at 

his home in Berkeley, and Halpern drove to Karen’s flat where he was detained outside.

Police questioned him for several hours that night and on a subsequent occasion. They 

also took fingerprints, and blood and saliva samples. In the months following the 

murder, Halpern and some of Karen’s friends conducted their own investigation. Halpern 

also considered hiring a private investigator, but he never did.

B. The Case Against Appellant

In October 2008, the San Francisco Police Department re-opened its investigation 

of Karen’s murder after receiving notice from the California Department of Justice of a 

“cold hit” DNA match between Karen’s autopsy evidence and appellant. A new 

reference sample was collected from appellant in December 2008. DNA testing 

conducted in May 2010 confirmed that appellant’s DNA matched sperm cell specimens

from the 1991 autopsy. In January 2011, appellant was charged with Karen’s murder.

In 2012, investigators arranged for additional DNA testing. Halpern was excluded 

as a source of sperm collected during Karen’s autopsy. A criminalist also analyzed male 

DNA from the underwear that was found near Karen’s dead body; he determined that a

treatment applied to the inside of the fabric extracted sperm cells that could have been 

captured in the material for several weeks and survived multiple washings. The analyst 

excluded appellant as a possible source of that DNA, but concluded that some of it may 

have come from Halpern, while another portion of it came from a third party.

Appellant’s jury trial commenced on November 5, 2013. In addition to the 

evidence summarized above, the prosecutor elicited testimony about Karen’s romantic 

life from her brother Dale and her best friend Carol Eng. Both testified that Halpern was 

Karen’s only romantic interest during the period prior to her death. Dale also testified 

that he had never seen appellant before he was charged with Karen’s murder. Nor was 

Dale aware of Karen ever having an African American boyfriend or of her going on a 

date with an African American man in 1991.
4

By the time of trial Dr. Stephens had passed away, so the prosecution elicited 

expert testimony about Karen’s autopsy from Dr. Amy Hart, a former colleague of 

Dr. Stephens and the current chief medical examiner of San Francisco. Dr. Hart offered 

expert opinions that the autopsy findings were consistent with nonconsensual sexual 

penetration at or around the time of death, that Karen’s death was caused by multiple 

traumatic injuries, and that the manner of death was homicide.

At trial, the prosecution also introduced evidence of three San Francisco home 

burglaries for which appellant suffered convictions. The first incident occurred on

July 23, 1981, at a home on Jackson Street. At approximately 4:00 a.m. that morning, the 

residents were awake in an upstairs bedroom and had their downstairs lights on because 

of a sick child when they were startled by appellant, who appeared in their doorway 

holding a 10 to 12-inch “sharp tapered” object “bunched up” in his hand. Appellant fled,

but was later found in possession of a serrated kitchen knife and other objects he took 

from the home. After the burglary, the residents and police did not find any signs of a 

forced entry.

The other two incidents occurred on September 7, 1991. That evening, Barbara 

Benedict fell asleep on the living room couch in her second floor apartment on Prado 

Street, leaving her television playing and some lights on. When she woke two hours 

later, Benedict noticed that a back window had been opened and someone had taken a

serrated carving knife from a kitchen drawer and left it on a table near the window. The 

contents of her briefcase were dumped on the floor, her purse was gone, and a roll of 

quarters and some stamps were missing from a desk.

Meanwhile, at around 11:00 p.m. that same evening, two undercover police 

officers spotted appellant in the Marina District where they were investigating a series of 

recent “hot prowl” burglaries, i.e., burglaries committed while people were home. One 

officer followed appellant into an alley, noticing he was not wearing gloves. Appellant 

climbed a ladder onto the deck of a home on Pierce Street, pulled back some blinds 

covering a sliding glass door, and looked inside the home. Lights were on, the sliding 

door was opened about two feet, and an older man was watching television inside. After 
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appellant walked away from the door and went down the stairs the officer detained him. 

Appellant was now wearing gloves and, as the officer handcuffed him, he said “You can’t 

arrest me, I didn’t go in there.”

C. The Defense Case

The defense attempted to throw suspicion on Steven Halpern. Halpern testified 

that the last time he saw Karen was the Sunday afternoon before her body was discovered 

when he dropped her off at her house after she spent the weekend with him in Berkeley. 

However, in the wake of the murder, a neighbor and friend of Karen’s told police that she 

walked her dog between 10:00 p.m. and 3:00 a.m. on the Sunday and the Tuesday before 

Karen’s body was discovered, and, on one of those occasions, Halpern’s car was parked

outside Karen’s home. Another friend of Karen’s reported that Halpern told her that the 

police suspected him of the murder, but that he was at home eating dinner with his 

daughter when Karen was killed.

At trial, Halpern testified that he was not allowed into Karen’s home the night her 

body was discovered, or for weeks thereafter. However, he admitted that, when he 

attempted to conduct his own investigation, he may have asked the neighbor who was 

with Dale when Karen’s body was discovered if he remembered seeing an iron. When 

asked to explain this fact at trial, Halpern testified that the police had asked him about the 

iron when they interrogated him and, although they did not disclose that the iron played a 

role in the murder, he assumed that it had because there would have been no other reason 

to ask him about it.

The defense also presented evidence that Karen and Halpern had relationship 

problems. At trial Halpern acknowledged that he and Karen both carried “baggage” from 

their previous marriages. He admitted they sometimes fought, and during one heated 

argument she hit him. Halpern also testified that he and Karen broke up for a period of 

about three months during the latter part of 1990, and that he saw other women during 

that time. But by 1991, Halpern testified, they were back together, talking about 

marriage and looking for a home to share. However, the defense introduced excerpts 

from Karen’s diary into evidence which documented ongoing problems Karen had with 
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Halpern in February 1991. For example, she commented that he had lashed out at her, 

had attacked her for months for no reason, and attacked her about her life.

Karen’s friend Christopher Choy was called as a defense witness. Choy, who was 

married to Karen’s friend Carol Eng, testified that Karen confided in him about 

arguments she had with Halpern. She also told him about her brief breakup with Halpern 

in 1990, something she had not shared with Carol. Choy testified that during that 

separation, Karen signed up for a dating service and had her mail from the service sent to 

Choy and Eng’s house. Halpern, who had met Karen by answering her personal ad, 

testified that he was aware that Karen had signed up with a dating service in November 

1990, right around the time they were getting back together after their brief separation.

D. The Jury Verdict

The jury began deliberating on December 11, 2013. On December 20, the trial 

court conducted a hearing to address allegations by several jurors that one of them was 

refusing to consider the trial evidence or to follow the court’s instructions. At the 

conclusion of that hearing, the court found there was good cause to remove Juror 2. (Pen.

Code, § 1089.)

2

 Juror 2 was replaced with an alternate and, after deliberating for less 

than a full day, the jury returned its verdict finding appellant guilty of first degree 

murder. (§ 187, subd. (a).) The jury also found true allegations that appellant committed 

the murder during a forcible rape (§ 1190.2, subd. (a)(17)(iii)), and that he used a deadly 

weapon during the crime (§ 12022, subd. (b)(1)). The trial court sentenced appellant to 

life in prison without the possibility of parole plus one year.

III.

DISCUSSION

A. Issues Presented and Standards of Review

Appellant contends that he was denied his constitutional rights to due process and 

a fair trial because, after the jury had deliberated for five days without reaching a 

 

2

 All statutory references are to the Penal Code unless otherwise indicated.
7

unanimous decision, the trial court invaded the sanctity of the jury’s deliberations and 

then erroneously removed a holdout juror from the jury panel.

The grounds upon which a juror may be removed for good cause are set forth in 

section 1089, which states: “If at any time, whether before or after the final submission 

of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the 

court is found to be unable to perform his or her duty, or if a juror requests a discharge 

and good cause appears therefor, the court may order the juror to be discharged and draw 

the name of an alternate, who shall then take a place in the jury box, and be subject to the 

same rules and regulations as though the alternate juror had been selected as one of the 

original jurors.”

“The trial court’s authority to discharge a juror includes the authority to conduct 

an appropriate investigation concerning whether there is good cause to do so, and the 

authority to take ‘less drastic steps [than discharge] where appropriate to deter any 

misconduct or misunderstanding it has reason to suspect.’ [Citation.]” (People v. 

Alexander (2010) 49 Cal.4th 846, 926 (Alexander).) Trial court decisions about whether 

and how to conduct such an investigation are reviewed on appeal under the traditional 

abuse of discretion test. (People v. Fuiava (2012) 53 Cal.4th 622, 712 (Fuiava).)

However, “[b]ecause of the importance of juror independence, review of the 

decision to discharge a juror involves ‘ “a somewhat stronger showing” than is typical for 

abuse of discretion review . . . .’ [Citation.]” (People v. Allen and Johnson (2011) 53 

Cal.4th 60, 71.) The standard of review applicable to removing a sitting juror requires 

the juror’s disqualification to appear on the record as a “ ‘ “demonstrable reality.” ’ ”

(People v. Farnam (2002) 28 Cal.4th 107, 141; People v. Barnwell (2007) 41 Cal.4th 

1038, 1052 (Barnwell).) “This standard indicates that a stronger evidentiary showing 

than mere substantial evidence is required to support a trial court’s decision to discharge 

a sitting juror.’ [Citation.]” (Barnwell, at p. 1052.) The demonstrable reality test 

“ ‘requires a showing that the court as trier of fact did rely on evidence that, in light of the 

entire record, supports its conclusion . . .’ that the juror was unable to perform his or her 

duties. [Citation.] Although a reviewing court will not reweigh the evidence, we ‘must 
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be confident that the trial court’s conclusion is manifestly supported by evidence on 

which the court actually relied.’ [Citation.] In reaching that conclusion, we ‘will 

consider not just the evidence itself, but also the record of reasons the court provides.’ 

[Citation.]” (People v. Debose (2014) 59 Cal.4th 177, 201.) This “ ‘heightened standard 

more fully reflects an appellate court’s obligation to protect a defendant’s fundamental 

rights to due process and to a fair trial by an unbiased jury.’ [Citations.]” (Fuiava, 

supra, 53 Cal.4th at p. 712.)

B. Background

1. The First Five Days of Deliberations

As noted above, jury deliberations commenced on December 11, 2013.3 On 

December 12 and December 16, the jury sent notes to the court requesting to see 

evidence and to have excerpts from the witness testimony read back.

On December 18, the jury sent a note to the court which stated: “We have come to 

a standstill. 11 jurors on one side, one on the other. Any advice you can impart on us 

would be much appreciated. More than one juror has expressed that it might help if there 

could be clarification on ‘reasonable doubt’ and ‘circumstantial evidence.’ Possibility vs. 

probability. Fact vs. imaginary. Focusing on what is in evidence, not on what is outside. 

Direct vs. indirect evidence. Outside biases and how they should be applied. ‘Abiding 

conviction’—what that means.”

After consulting with counsel, the trial court informed the jury that the only way it 

could answer their questions would be to re-read some instructions and provide some 

advice. The court then instructed the jury with CALCRIM No. 3551, which sets forth 

suggestions for overcoming difficulty reaching a verdict, resuming deliberations, and 

successfully reaching a verdict. The court also repeated some instructions that were 

previously provided. Then it directed the jury to continue deliberating.

 

3

 All subsequent date references are to the 2013 calendar year unless otherwise 

indicated.
9

2. The Notes from Individual Jurors

On the afternoon of December 18, Juror 2 sent a note to the trial court which 

stated: “I believe I have performed my jury service to the best of my ability and the 

evidence did not leave me with an abiding conviction that the charge is true. [¶] I have

reached this decision in good faith and with extreme difficulty. Furthermore, I believe 

racism and bias played a large factor in this deliberation. [¶] Thank you.”

By the following afternoon, the court had received six additional notes from jurors 

complaining about Juror 2. One note stated that the jury was “still at a stand still”

because “one lone juror” was refusing to consider the “majority of the evidence, in 

violation of section 222 [and] section 220.” According to this note, the holdout juror 

refused to “accept” the medical testimony, or give “any weight” to the testimony 

regarding “the character of the victim.” This note stated that the juror was basing his 

conclusions on “far-fetched ‘what-ifs,’ ” and personal experiences, some of which were 

described in the note. The note also stated that, on the first day of deliberations, the 

holdout juror expressed concern about the defendant dying in prison, and that the juror 

had repeatedly ignored the jury instructions. The note concluded that “I do not see us 

getting beyond this point.”

A second note stated that the jurors had spent five days “going through the 

evidence carefully,” and were “at a bit of an impasse.” This juror stated that “[f]or the 

past few days,” 11 jurors had been in unanimous agreement about the verdict based 

solely on the evidence, while one juror had been unable to “reach any sort of verdict.” 

This juror opined that the holdout was unable to perform his role as a juror, or to follow 

the instructions. A third note inquired what could be done if a juror was not following 

the instructions, and if the court could appoint an alternate for a juror who was “not 

accepting evidence.” The fourth note identified Juror 2 as the holdout and complained 

that he was “ignoring disputing evidence based off his personal beliefs,” and that “[w]e 

are not doing the victim justice by ignoring evidence.” A fifth note complained that 

“[e]leven intelligent jurors have re-examined every piece of evidence,” and concluded 

that appellant raped and murder the victim, but that one juror “refused to consider the 
10

evidence.” This juror recommended that if the trial ended with a hung jury the defendant 

should be tried again “as soon as possible.” The final note acknowledged that “[w]e are 

on the verge of being a hung jury,” attributing this problem to Juror 2’s “antipathy toward 

Stephen Halprin [sic].” This juror also disclosed that 11 of them had gone over all of the 

evidence in an effort to persuade Juror 2, but to “no avail,” and stated that a hung jury 

would be “a tragic denial of justice” to the victim and her family.

Late in the afternoon of December 19, the trial court directed the jury to report to 

the courtroom the next day notwithstanding its previous advisement that they would have 

that day off. The court acknowledged that “you’ve all gone through the ringer on this 

and my heart goes out to you, quite frankly.” The foreperson for the jury asked whether 

they would also have to appear the following Monday, December 23, because some of 

them had booked flights. The court advised that the jury might need to be present that 

day but said they would definitely have a holiday break from the 24th through the 27th 

even if they did have to return thereafter.

On Friday morning December 20, the court met with the parties and counsel 

outside of the presence of the jury to discuss whether to hold a hearing on the allegations 

of juror misconduct. The defense argued that the court should declare a mistrial without 

further inquiry because several jurors had made it clear that 11 of them had already 

decided this case, and if Juror 2 was replaced, those 11 jurors would not be able to start 

over with an open mind and reconsider the evidence anew. The prosecutor took the 

position that the court needed to inquire further. The trial court conducted a hearing that 

afternoon.

3. The Trial Court’s Inquiry

The trial court’s inquiry consisted of individual interviews of each juror who had 

submitted a note, beginning with Juror 1, the foreperson. The court asked Juror 1 to 

explain statements in her note that Juror 2 refused to consider the majority of the 

evidence or to follow the instructions. Juror 1 stated that Juror 2 “did not give any weight 

to any of the circumstantial evidence in this case,” and then asked “if you can’t give 

weight to evidence, how can you weigh the evidence in a case and properly deliberate?”
11

Juror 1 acknowledged that Juror 2 “participated in discussions,” and gave the “impression 

that he was potentially open to discussing some things,” but she said that he would never 

“actually accept any of the circumstantial evidence in the case.”

Juror 1 also stated that Juror 2 violated the court’s instruction not to consider the 

penalty when reaching a verdict. She recalled that one of the first comments Juror 2 

“made, very passionately, was that he . . . knows that the minimum sentence for murder is 

fifteen years, which I thought was interesting because I don’t know that and I’m an 

attorney . . . .” Juror 1 also recalled that Juror 2 expressed concern that the defendant

would die while in prison. And, according to Juror 1, Juror 2 violated other instructions 

which required him to explain his “abiding conviction” and other conclusions about what 

may or may not have actually happened. Juror 1 acknowledged that Juror 2 shared his 

opinions, but she believed those opinions were based on personal experiences that were 

“inappropriate” and “far-fetched” and did not logically connect to the case. Ultimately, 

Juror 1 described the deliberations as “a tragedy.” However, she denied the suggestion 

that any of the jurors based their verdict on sympathy for the victim.

After Juror 1 was excused, defense counsel suggested that they could “nip this in 

the bud” by admonishing Juror 2 to follow the instruction not to consider the penalty for 

the charged crime and then ordering the jury to resume deliberations. The trial court 

rejected this suggestion, and called Juror 10 into the courtroom.

Juror 10 was asked about a comment in her note that Juror 2 was “unable to 

perform the role of a juror.” She explained that he just could not “accept” the evidence. 

She acknowledged that he appeared to at first, but she complained that he would later say 

“what if . . . .” She felt that he mixed up “possibility with reasonability,” and that his 

conception of reasonable doubt was “just sort of blurry.” Juror 10 also felt that Juror 2 

was either unable or unwilling to defend his views by pointing to evidence. Juror 10 did 

not believe any juror was motivated by a desire to do justice for the victim.

Juror 4 repeated many of the criticisms that Juror 1 had directed at Juror 2. She 

complained that Juror 2 considered the 15-year penalty for murder; rejected most of the 

evidence; relied solely on personal experiences that had no connection to the evidence; 
12

and failed to understand the concept of circumstantial evidence. Juror 4 also felt that 

Juror 2 focused too much on the instruction requiring an “abiding conviction” of guilt, 

while ignoring other important instructions about the evidence. She acknowledged that 

Juror 2 participated in discussions about the evidence “to some extent,” but she 

complained that he eventually refused to deliberate any further, even when the whole 

point of further discussion was to address his doubts. Juror 4 admitted that there was 

some discussion about justice for the victim and she acknowledged that doing justice for 

the victim impacted her own deliberations, although she was not able to explain how.

Juror 9 was asked to explain a statement in his or her note that Juror 2 was 

“ignoring disputing evidence based off his personal beliefs.” Juror 9 said that when they 

were talking about the evidence, “putting evidence together,” Juror 2 would say he did 

not want to look at “the pieces” of evidence, but wanted to come up with the “whole 

picture,” which was based on his hunch or gut feeling or a movie he had seen rather than 

on the actual evidence. Juror 2 also expressed doubts about the evidence and thought 

there could have been “mistakes with it.” For example, Juror 2 suggested that there could 

have been a mistake in the medical examiner’s report or in the way the police collected 

the evidence and Juror 9 would tell him something “like ‘oh my gosh,’ you know, at 

some point you have to reasonably think people do their jobs.” The court asked Juror 9 

about a comment in his or her note that Juror 2 was not doing justice to the victim. 

Juror 9 explained that Juror 2 focused on a feeling about not wanting to send somebody 

to jail when, in Juror 9’s view, he should think about doing justice for everybody by 

looking at the evidence.

Juror 11 was asked to explain a comment in her note that Juror 2 had refused to 

consider the evidence. Juror 11 responded that “[t]he evidence, to me, and it seems to ten 

other members of the jury, seems very conclusive that [appellant] committed the crime.” 

Juror 11 said that “we only reached this decision after going over every bit of evidence,”

but, “after four or five days, there’s the one juror, who says he . . . accepts the medical 

evidence, but then says . . . that despite that, he does not feel beyond a reasonable doubt 

that [appellant] committed the crime.” Juror 11 described the jury as a good group in 
13

terms of talking with each other, and said that Juror 2 would “kind of go along with 

things” to a point, but she complained that he would not accept the ultimate facts, 

including that the defendant’s semen “is proof” that he raped the victim, and that the 

defendant “tied her up and viciously attacked her with a knife, which was part of his . . .

habit in other—not habit but carrying a knife was common.” The court asked Juror 11 

what Juror 2 would do when these points were made to him and she responded that “[h]e 

would say, ‘It just doesn’t seem beyond a reasonable doubt that maybe [appellant] and 

[the victim] had consensual sex, perhaps outside of the apartment,’ and then someone 

else came in and raped and murdered her later.”

The court asked Juror 11 if Juror 2 was willing to discuss the evidence. Juror 11 

said the other jurors tried hard to get Juror 2 to show them evidence supporting his 

position, but he simply did not think that the DNA and “all the other evidence” was 

conclusive of guilt. Juror 11 acknowledged that justice for the victim came up but said 

that most of the discussion focused on the evidence. When asked if Juror 2 looked at the 

photographs, Juror 11 responded “Not very much.” When asked if he looked at the other 

evidence, Juror 11 responded by explaining how the jury evaluated the evidence—they

would read and re-read a report and make lists of what they all agreed on, but then 

Juror 2 would go back to something he had agreed to and tell them why he did not really 

agree. Juror 11 started to describe a specific example involving the DNA evidence, but

the court told her not to go into “all of that.” Finally, Juror 11 shared her view that the 

“jury was very interested in following the rules and doing the right thing. They hung in 

there through, what, three or four weeks plus five or six days of deliberations.”

Juror 3 submitted the note disclosing that 11 jurors conducted an exhaustive 

review of the evidence in an effort to persuade Juror 2 but they were unable to do so. The 

court asked whether Juror 2 participated in those discussions. Juror 3 responded “Oh, 

yes,” but then stated that Juror 2 did not “volunteer much.” He would respond to direct 

questions, but often said “I don’t know.” He was hard to pin down and he clung to 

“reasonable doubt” without seriously considering the evidence. When asked why she 

believed Juror 2 never seriously considered the evidence, this juror responded: “Well, he 
14

listened to it. He would agree to it, ‘yes, but,’ and then he would discount it.” Juror 3 

acknowledged that Juror 2 listened to other points of view and was never arrogant, but 

she felt that arguments presented to him were like “water off a duck’s back.” When the 

court invited this juror to share whatever she wanted and to be as “frank as [she] could 

be,” Juror 3 opined that the public defender’s office was “doing a disservice to the cause 

of justice” in this case. Nevertheless, Juror 3 assured the court that if Juror 2 was 

replaced with an alternate, she would able to “literally start deliberating anew with a new 

juror.”

Finally, the court spoke with Juror 2, focusing first on the comment in his note that 

racism or bias was a factor in the deliberations. Juror 2 stated that the foreperson wanted 

to vote at the very beginning of the deliberations and, although the jury followed his 

suggestion to wait, it was clear that many jurors had already made up their minds. As 

deliberations continued, he would mention the lack of evidence that the defendant was 

capable of such a brutal crime and everyone else just accepted that he did it because of 

the priors which also involved using a knife. Juror 2 said there was “no real open air of 

impartiality,” and that all of his expressions of doubt were met with “dirty looks.” His 

concern about racial bias was that the other jurors were quick to accept that the defendant 

was capable of extreme violence even though he had no history of such behavior, but 

they would not consider that the boyfriend might also have done violence for the first 
15

time. Also, they would not consider that the victim might have become romantically 

involved with an African American.4

The court asked Juror 2 how he knew the penalty for murder was 15 years to life. 

Juror 2 said he learned that before the trial, from a friend who worked in the district 

attorney’s (D.A.) office in another county. When asked for more details, Juror 2 

explained that on the day he was called for jury duty, or possibly the following day, he 

went to dinner with a friend and his friend’s boyfriend. During the meal, he mentioned 

that he had been called for a murder trial and the boyfriend, who was a D.A., responded 

that “you know—that’s a big penalty, fifteen years.” Juror 2 said they did not discuss the 

matter beyond that remark. Juror 2 also said that he mentioned the possible penalty 

during deliberations, but the foreperson reminded him about the jury instruction not to 

consider punishment when deciding about guilt, and he “never mentioned it again, or 

considered that again during the deliberation.”

Juror 2 told the court that he had “[a]bsolutely” looked at all of the evidence in the 

case. Other jurors would ask him to ignore certain evidence to see if his opinion might 

change, but he refused to do that because of the jury instruction that said it was important 

to consider the totality of the evidence. The court asked what “details” the other jurors 

should have considered. Defense counsel attempted to object but the court pressed for 

“information,” to which Juror 2 responded with the example that he would suggest 

 

4

 Juror 1, Juror 10, Juror 4, and Juror 11 denied that racial bias affected the jury

deliberations. Juror 11 further explained race could not have been a factor because the 

victim and two main suspects were all different racial minorities. The court did not ask 

Juror 9 or Juror 3 about racial bias. Nor did the court make a formal finding regarding 

Juror 2’s allegation of racial bias. However, during discussion with counsel, it criticized 

Juror 2 for failing to provide “evidence” or “really anything” to support the statement in 

his note that other jurors were racially biased. Defense counsel attempted to clarify Juror 

2’s concern that some jurors were applying a double standard by dismissing the fact that 

defendant had no history of violence but refusing to consider that the victim might have 

had a first-time romantic relationship with an African American man. The court 

responded: “But we honestly don’t know if they did or they didn’t. I mean we didn’t 

talk to any of them about it and that’s really getting into the mental processes.”
16

someone might do something for the first time and the other jurors would say “[t]hat’s 

crazy,” or “What’s wrong with you? Do you want your sister to get raped?”

After the court completed its inquiry, there was a lengthy discussion with counsel 

during which the court identified two potential grounds for removing Juror 2: 

(1) violating the court’s instruction not to talk about the case by talking to his “friend, the 

D.A.,” and (2) refusing to deliberate. Ultimately, over a defense objection, the trial court 

removed Juror 2 from the jury, finding that “based on what I feel is demonstrable reality 

from these jurors, that he is unable to perform his duty as a juror for the reasons I’ve 

stated below and for reasons stated by [the prosecutor]. [¶] And I don’t want to take 

more time to repeat them but I’ll accept them.”

4. The Jury Verdict

An alternate (Replacement Juror 2) was appointed and the jury was instructed to 

begin deliberations anew. The jury deliberated for 30 to 45 minutes on December 20, 

and resumed deliberations the following Monday at 9:30 a.m. At around 1:45 p.m., the 

bailiff notified the court that the jury had reached a verdict, but that Replacement Juror 2 

did not want to be present when it was read because she knew people in the audience who 

had come to support the defendant. Replacement Juror 2 was not willing to share her 

feelings in a note, so the court held a short hearing with her and the parties. Replacement 

Juror 2 confirmed that she knew some of the audience members from the “neighborhood”

where she used to live, although they were older than her and she had never talked with 

them. Replacement Juror 2 stated that these individuals did not affect her deliberations,

and that she was prepared to announce her verdict out loud in open court. The court 

asked if Replacement Juror 2 had initially been afraid to do that and she responded: 

“Well, I was—no. I’m not afraid. It’s just that I don’t—I don’t know what I was actually 

trying to say then.” Replacement Juror 2 reiterated, “No. I’m not afraid, not at all.”

After Replacement Juror 2 left the court room the defense moved for a mistrial, 

arguing that the speed with which a verdict was reached reinforced the defense claim that 

the 11 jurors were not capable of deliberating anew. Furthermore, sending the jurors 

back to deliberate after they disclosed that they were split 11 to one in favor of guilt, why 
17

they believed the defendant was guilty, and what evidence was important to them, was 

essentially telling them to go back and return the guilty verdict that the 11 had wanted to 

reach. Finally, Replacement Juror 2’s failure to disclose that she knew people in the 

courtroom was a ground for disqualification and her assurance that this fact did not affect 

her deliberations was not credible. The trial court rejected these arguments, and denied 

the motion for a mistrial. A guilty verdict was read and confirmed by all 12 jurors.

C. Analysis

“A trial court made aware of the possibility of a juror’s misconduct, and 

particularly possible misconduct occurring during the jury’s deliberations, is placed on a 

course that is fraught with the risk of reversible error at each fork in the road. [Citation.] 

The court must first decide whether the information before the court warrants any 

investigation into the matter. [Citation.] If some inquiry is called for, the trial court must 

take care not to conduct an investigation that is too cursory [citation], but the court also 

must not intrude too deeply into the jury’s deliberative process in order to avoid invading 

the sanctity of the deliberations or creating a coercive effect on those deliberations 

[citation]. After having completed an adequate (but not overly invasive) inquiry into the 

misconduct issue, the trial court must then decide whether, under section 1089, there is 

‘good cause’ to excuse the juror at issue. The court at this final fork might err in 

declining to dismiss a juror who should have been excused [citation] or excusing a juror 

who should have been retained [citation]. In making these decisions, a trial court might 

at times be placed between a rock and a hard place[.] . . .” (Fuiava, supra, 53 Cal.4th at 

pp. 710-711, fn. omitted.)

In the present case, there is no question the trial court was caught between a rock 

and a hard place. While the court’s effort to bring the trial to a verdict was

understandable, in the process it was unable to avoid committing reversible error that can 

occur when a trial court is made aware of the possibility of misconduct by a deliberating 

juror, and then chooses a path to resolve the dilemma which makes confrontation with the 

defendant’s due process rights unavoidable.
18

1. The Decision to Investigate

The first decision the trial court faced was whether to investigate the allegations of 

juror misconduct. (Fuiava, supra, 53 Cal.4th at p. 710.) At that point, the court was 

aware of the following facts: The jury had deliberated for five days without complaint 

before disclosing they were split 11 to one, and that they needed advice about how to 

proceed. Then, after receiving supplemental instructions and encouragement to resume 

deliberations, a majority of the jury submitted notes which made it clear that the 11 to 

one split was a permanent deadlock in favor of guilt.

On these facts, there would have been no question the trial court had the authority

to declare a mistrial. “Jury deadlock constitutes necessity for declaration of a mistrial 

and permits retrial of the defendant. [Citations.]” (People v. Halvorsen (2007) 42 

Cal.4th 379, 425-426; see also § 1140 [jury may be discharged after the cause is 

submitted to them if “at the expiration of such time as the court may deem proper, it 

satisfactorily appears that there is no reasonable probability that the jury can agree”].)

Furthermore, several of the jurors who had submitted individual notes violated the 

court’s instruction not to “reveal to me or anyone else how the vote stands on the 

question of guilt or issues in this case unless I specifically ask you to do so.” Those notes 

disclosed substantive information about the mental processes of this jury, including that 

11 jurors were convinced that the defendant was guilty of the charges and that Juror 2’s 

primary disagreement with the other jurors pertained to the weight of the circumstantial 

evidence. After those improper disclosures, any inquiry designed to avoid a mistrial 

carried a significant risk that the remaining jurors might interpret the court’s actions as 

approving their point of view. (People v. Carter (1968) 68 Cal.2d 810, 816 [“Most cases 

wherein adjuratory remarks of the court have been held coercive are those in which the 

court, either through its own questioning or through volunteered statements of jurors, has 

become informed not only as to the numerical division of the jury but also as to how 

many stand on each side of the ultimate issue of guilt.”].) Under these circumstances, the 

decision to conduct an inquiry into allegations of misconduct by Juror 2 rather than 
19

declare a mistrial was, at best, an undertaking launched against a torrent of due process 

concerns.

2. The Scope of the Inquiry

If the jury notes did not by themselves compel the trial court to declare a mistrial, 

there were at least two material problems with the inquiry the trial court conducted to 

investigate the allegations of misconduct. First, although the court required all of the 

jurors to appear on a day that had originally been scheduled as a day off, it only 

questioned jurors who had submitted individual notes. This decision skewed the 

evidence from the beginning in a way that unfairly impacted the defense because the 

court elicited information about Juror 2 only from those jurors who had complained about 

him. (See People v. Barber (2002) 102 Cal.App.4th 145, 150-152 [inquiry into juror 

misconduct “inadequate and fundamentally unfair” when court only questioned jurors 

who accused holdout of refusing to deliberate].)

Second, while questioning this select group of complaining jurors, the court failed 

to take meaningful steps to prevent them from further disclosing the mental processes of 

the jury. On appeal, the Attorney General defends the trial court’s inquiry, contending it 

did not ask a single question that was too invasive. The court itself took a similar view 

when it acknowledged to trial counsel that some jurors had shared their mental processes, 

but concluded that the improper disclosures were unsolicited and therefore unavoidable. 

But our Supreme Court has instructed that “a trial court’s inquiry into possible grounds 

for discharge of a deliberating juror should be as limited in scope as possible, to avoid 

intruding unnecessarily upon the sanctity of the jury’s deliberations,” and it “should focus 

upon the conduct of the jurors, rather than upon the content of the deliberations.” 

(People v. Cleveland (2001) 25 Cal.4th 466, 485 (Cleveland).) Here, despite the fact that 

the jury notes forewarned of the complaining jurors’ inclination to disclose their thought 

processes, the trial court asked them open-ended questions without taking appropriate 

steps to limit its inquiry to a discussion about the conduct of the jurors rather than the 

content of their deliberations.
20

Of the seven jurors the court questioned, only two were provided with prefatory 

admonitions not to discuss mental processes, and, in both cases, the court’s remarks were 

more suggestive than directive.5Juror 11, who received no prefatory admonition, was 

allowed to provide extensive details about the jury’s analysis of the evidence. When 

Juror 11 began to describe a specific disagreement with Juror 2 about what the DNA 

evidence showed, the court did finally say “You can’t really go into all of that,” but it did 

not explain why, and then it asked that same juror if there was “anything else” he or she

would like the court to know. After Juror 11 was excused, and Juror 3 was already in the 

courtroom, the prosecutor reminded the court about the need for a prefatory admonition,

to which the court responded: “Can you—I’m not allowed to really go into the—the 

mental processes of the jurors in making decisions, but I still need to somehow ferret out 

what’s going on in there in terms of the notes that have been written to me.”

The trial court failed its duty to avoid unnecessarily intruding upon the sanctity of 

the jury’s deliberations. (Cleveland, supra, 25 Cal.4th at p. 485.) As our background 

summary reflects, the court’s inquiry into allegations directed against Juror 2 was 

significantly more intrusive than its inquiry regarding possible racial bias or its 

subsequent interview of Replacement Juror 2, who had disclosed that she knew and was 

afraid of appellant’s friends. Thus, the record shows that the trial court abused its 

discretion not only by conducting too invasive of an inquiry regarding the first Juror 2,

but also by applying a fundamentally different approach to investigate allegations against 

this holdout juror than it did when investigating possible misconduct by jurors who had 

already disclosed their intent to vote for a verdict of guilt.

Furthermore, regardless whether improper disclosures about the mental processes 

of this jury were inadvertent or unavoidable, the trial court was told in no uncertain terms 

 

5

 The court asked Juror 1, the first juror it interviewed, to “as much as you can, 

sort of stay away from” the “mental process that each juror has reached.” At the 

beginning of the next interview, with Juror 10, the court stated, “you should talk from 

your own personal view,” but then added “And try not to talk about mental processes that 

the jurors were going through, okay.”
21

that the jury had voted 11 to one in favor of guilt, and it was provided with extensive 

information about precisely why Juror 2 evaluated the evidence differently than his 

fellow jurors. Under these circumstances, the court’s decision to remove only the

holdout juror could have had a coercive effect by sending a message to the remaining 

jurors that the court agreed with their assessment of the evidence, and their conclusion 

that the defendant was guilty beyond a reasonable doubt. (People v. Carter, supra, 68 

Cal.2d at p. 816.)

3. The Decision to Remove Juror 2

Finally, we turn to the trial court’s decision to remove Juror 2 for good cause and

replace him with an alternate, which we review under the demonstrable reality test in 

order to ‘protect a defendant’s fundamental rights to due process and to a fair trial by an 

unbiased jury.’ [Citations.]” (Fuiava, supra, 53 Cal.4th at p. 712.)

a. The Instruction Not To Discuss The Case

The trial court found there was good cause to remove Juror 2 because of his 

“discussion with someone else about the trial” after he “was clearly admonished not to do 

that.” As the court explained: “I instructed very—in the beginning, I have a big slide up 

on the podium—on the screen that says, ‘Do not talk to anyone about this case.’ Just tell 

them that you are in a trial. [¶] And he admitted that he did talk to someone, a D.A., not 

just his next door neighbor, and received information from the D.A. I honestly don’t 

believe that’s where the conversation ended. But that’s okay; that’s the only thing that he 

said.”

The primary problem with this ruling is that the record does not establish that 

Juror 2 violated an instruction from the court by telling a friend’s boyfriend that he was a 

prospective juror in a murder case. The court began the jury selection process by 

providing several panels of prospective jurors with an introductory slide presentation 

about the jury process. Although the court covered the same information with each 

panel, the presentation was not scripted. For example, the court told the first jury panel:

“Do not talk to anyone about this case, about any matter involved with this case.” It then 

shared an anecdote about a juror whose seemingly innocuous comment to a coworker led 
22

to the disclosure of prejudicial information requiring her removal from the jury. 

However, before sharing this same anecdote with a subsequent panel, the court gave this 

instruction: “You can tell your friends and others that you are jurors or being summoned 

as jurors on a murder case and that’s about it.” Thus, Juror 2’s disclosure to his friend’s 

boyfriend that he was a prospective juror on a murder case was something the trial court 

had specifically authorized at least one group of prospective jurors to disclose.

Secondarily, the trial court did not actually find that the communication between 

Juror 2 and the D.A. had a prejudicial effect on the deliberative process, nor indeed 

provide any substantive explanation for its conclusion that this pretrial communication 

constituted good cause for removal. A “ ‘nonjuror’s tampering contact or communication 

with a sitting juror, usually raises a rebuttable “presumption” of prejudice. [Citations.]’ 

[Citation.] However, ‘ [t]he introduction of much of what might strictly be labeled 

“extraneous law” cannot be deemed misconduct. The jury system is an institution that is 

legally fundamental but also fundamentally human. Jurors bring to their deliberations 

knowledge and beliefs about general matters of law and fact that find their source in 

everyday life and experience. That they do so is one of the strengths of the jury system. 

It is also one of its weaknesses; it has the potential to undermine determinations that 

should be made exclusively on the evidence introduced by the parties and the instructions 

given by the court. Such a weakness, however, must be tolerated.” (People v. Danks

(2004) 32 Cal.4th 269, 302-303.) Here, the record demonstrates that the communication 

with the D.A. occurred in a social setting, took place when Juror 2 was only a prospective 

juror, did not involve a matter that was pending before the jury, and did not actually 

violate any instruction that had been provided at that early stage in the proceeding.

The Attorney General contends the trial court implicitly found that the D.A.’s 

contact with Juror 2 was prejudicial because it explicitly found that Juror 2’s account of 

that conversation was not credible. Actually, the court did not make or rely on an adverse 

credibility finding, but it did express doubt that the discussion Juror 2 had with the D.A. 

about this case was limited to a comment about the heavy penalty for murder. However, 

the demonstrable reality test we apply to review a juror removal requires a showing that 
23

the trial court actually relied on evidence that, in light of the entire record, establishes a 

ground for disqualification. (Barnwell, supra, 41 Cal.4th at p. 1052.) And, in this 

instance, the trial court’s doubt about Juror 2’s account of his dinner conversation was 

speculation, unsupported by any explanation that would indicate that the court actually 

relied on evidence in the record. For example, the court did not articulate why Juror 2 

would have reason to lie about the conversation. Furthermore, in assuming the 

discussion must have been improper because the other person was a D.A. rather than just 

a neighbor, the court overlooked the fact that a D.A. would know not to discuss the 

substance of a pending criminal action with a potential juror.

Finally, the People argue the conversation was prejudicial because it resulted in a 

disclosure to the entire jury that the minimum penalty for murder is 15 years. However, 

the trial court did not find, nor is there any evidence, that this disclosure affected any 

other juror’s performance of his or her duties. As for Juror 2, the disclosure appears to 

have had a curative effect; he mentioned the 15-year penalty near the beginning of the 

deliberations, the foreperson reminded him about the jury instruction to not consider the 

penalty, and he did not raise that issue again. In any event, under our standard of review, 

we cannot affirm the trial court’s ruling on a ground upon which it did not rely (Barnwell, 

supra, 41 Cal.4th at p. 1052), and this trial court did not remove Juror 2 for violating the 

jury instruction not to consider penalty or punishment.

b. Refusal To Deliberate

The trial court did find that Juror 2 could be removed for cause because he refused 

to deliberate. “A refusal to deliberate consists of a juror’s unwillingness to engage in the 

deliberative process; that is, he or she will not participate in discussions with fellow 

jurors by listening to their views and by expressing his or her own views. Examples of 

refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the 

beginning of deliberations and refusing to consider other points of view, refusing to speak 

to other jurors, and attempting to separate oneself physically from the remainder of the 

jury.” (Cleveland, supra, 25 Cal.4th at p. 485.)
24

Here, the record contains extensive evidence that Juror 2 participated in the

deliberative process. For example, instead of expressing a fixed conclusion at the 

beginning of the deliberations, Juror 2 objected to the foreperson’s proposal to take a vote 

on the first day of deliberating. He also discussed the evidence with his fellow jurors, 

shared his opinions and listened to them for five days before he—like several other 

jurors—submitted a note which indicated that he had reached a final decision. These 

factual circumstances are antithetical to a finding that Juror 2 refused to deliberate. 

(Compare People v. Diaz (2002) 95 Cal.App.4th 695, 700 [after two hours, juror refused 

to discuss her opinion other than to say that was how she felt and later told the court that 

she felt intimidated by other jurors who ganged up on her]; People v. Watson (2008) 43 

Cal.4th 652, 696-697 [after a single afternoon of deliberations, juror told jury he could 

not vote for the death penalty under any circumstances and confirmed that sentiment to 

the trial judge]; People v. Boyette (2002) 29 Cal.4th 381, 462 [before deliberations began, 

juror made it clear to the court that he could no longer be objective].)

Rather than give due consideration to the deliberative process that all jurors, 

including Juror 2, had engaged in, the trial court instead found there was good cause to 

remove Juror 2 for refusing to deliberate simply because several jurors had remarked that

Juror 2 would not “consider” the evidence.6 As the court stated during discussions with 

counsel, “[h]e is required to look at all the evidence and not discount particular evidence. 

He doesn’t have to believe it. He doesn’t have to accept it. But he does have to—he 

can’t disregard evidence.”

This record does not establish as a demonstrable reality that Juror 2 refused to 

actually look at the trial evidence. The jurors who accused Juror 2 of refusing to 

“consider” the evidence all clarified during their interviews that what he actually did was 

 

6

 Many jurors also complained that Juror 2 failed to support his position with 

evidence. This complaint which may have found traction with the trial court is troubling. 

In light of the prosecution’s burden of proof, Juror 2’s alleged failure to identify evidence 

that the defendant was not guilty could not be a proper ground for excusing him. Rather, 

the pertinent question was whether Juror 2 actually refused to look at the evidence that 

was introduced at trial. (Cleveland, supra, 25 Cal.4th at p. 485.)
25

refuse to accept that the prosecution evidence, which they found so compelling, was 

sufficient to prove that the defendant committed murder. For example, Juror 1 

acknowledged that Juror 2 participated in discussions, but complained that Juror 2 would 

never actually “accept” the circumstantial evidence. Juror 11, who also complained that 

Juror 2 refused to “consider” the evidence, acknowledged that Juror 2 participated in 

discussions and accepted the DNA evidence, but nevertheless complained because 

Juror 2 did not feel that the defendant was guilty “beyond a reasonable doubt.” The trial 

court mistakenly relied on these types of accusations because the “ ‘circumstance that a 

juror disagrees with the majority of the jury as to what the evidence shows, or how the 

law should be applied to the facts . . . does not constitute a refusal to deliberate and is not 

a ground for discharge.’ [Citation.]” (Alexander, supra, 49 Cal.4th at p. 926; see also 

Cleveland, supra, 25 Cal.4th at p. 485; In re Bolden (2009) 46 Cal.4th 216, 228-229.)

The Attorney General contends that Juror 4’s remarks support the trial court 

finding that Juror 2 actually refused to deliberate. After explaining to the court that the 

jury spent considerable time working on timelines and pros and cons lists, Juror 4 

acknowledged that Juror 2 participated in these discussions “to some extent,” but then she 

complained that “eventually he just kind of refused to deliberate any further.” Thus,

Juror 4 implicitly acknowledged that Juror 2 did deliberate by participating in discussions 

about the evidence until he reached a point at which he made a decision that he was 

unwilling to change. Juror 3 echoed this sentiment by confirming that Juror 2 

participated in the jury’s exhaustive review of the trial evidence and that he listened to 

the arguments of other jurors, but that he simply was not convinced by them. Remarks of 

this nature do not support the trial court’s finding because a refusal to be persuaded by

fellow jurors does not constitute a disqualifying refusal to deliberate. (See, e.g., In re 

Bolden, supra, 46 Cal.4th at p. 229 [juror listened to other jurors, considered but was not 

persuaded by their opinions, expressed his own views, and did not refuse to speak with or 

physically separate himself from other jurors]; People v. Allen and Johnson, supra, 53 

Cal.4th at p. 76 [that juror expressed doubts about prosecution case and strength of 

evidence of guilt and was not persuaded by colleagues’ assertions during deliberations 
26

did not constitute prejudgment of case.]; People v. Karapetyan (2003) 106 Cal.App.4th 

609, 621 [reversible error to remove juror who, after “deliberating fully and completely 

for more than five days,” stated that “he was not going to change his view and was going 

to vote not guilty”].)

The Attorney General acknowledges there is evidence that Juror 2 was 

deliberating, but takes the position that conflicting evidence requires us to defer to the 

trial court’s determination which was based on firsthand observations. (Citing Barnwell, 

supra, 41 Cal.4th at pp. 1052-1053.) In Barnwell, the trial court removed Juror R.D. for 

a disqualifying bias against police officers, finding that the testimony of nine jurors was 

more credible than Juror R.D.’s disclaimer. On appeal, the Barnwell court afforded

deference to the trial court’s credibility determination, and ultimately found that the 

totality of the evidence supported the conclusion that Juror R.D.’s disqualifying bias had 

been established “to a ‘demonstrable reality.’ ” (Id. at p. 1053.)

Barnwell, supra, 41 Cal.4th at page 1053 is inapposite because, even if we 

disregard Juror 2’s denial that he refused to deliberate, the testimony of the complaining 

jurors does not support the trial court’s conclusion that Juror 2 actually failed to 

deliberate. Many of them used conclusory language indicative of misconduct to convey 

their frustrations about Juror 2. But, as laypersons, these jurors likely did not understand 

that “the court may not discharge a juror for failing to agree with the majority of other 

jurors or for persisting in expressing doubts about the sufficiency of the evidence in 

support of the majority view.” (People v. Engelman (2002) 28 Cal.4th 436, 446.) “It is 

difficult enough for a trial court to determine whether a juror actually is refusing to 

deliberate or instead simply disagrees with the majority view. [Citations.] Drawing this 

distinction may be even more difficult for jurors who, confident of their own good faith 

and understanding of the evidence and the court’s instructions on the law, mistakenly 

may believe that those individuals who steadfastly disagree with them are refusing to 

deliberate or are intentionally disregarding the law.” (Ibid.) Here, the substantive 

descriptions of Juror 2’s behavior that were provided to the trial court by the complaining 

jurors showed that Juror 2 did not fail or refuse to deliberate, but instead participated in 
27

deliberations, and then reached a conclusion about the evidence which was intolerable to 

the complaining jurors.

We do not intend to appear unduly harsh towards the efforts by the trial court, 

which appear to have been well-intentioned, to resolve a jury impasse occurring well into 

deliberations on the threshold of the annual December holiday season, and after a lengthy 

trial. However, our review of this record leads to the inescapable conclusion that the trial 

court relied on evidence which did not support its conclusion that there was good cause to 

remove Juror 2 under section 1089, and thus abused its discretion under the demonstrable 

reality test. In parallel situations, courts have found that the erroneous removal of a 

holdout juror is necessarily prejudicial. (See Cleveland, supra, 25 Cal.4th at p. 486; 

People v. Elam (2001) 91 Cal.App.4th 298, 318.) The Attorney General does not argue 

otherwise. Furthermore, as discussed above, because several jurors disclosed not just the 

fact that the jury was deadlocked 11 to 1 in favor of guilt, but also their subjective,

conjectural ruminations as to precisely why the deadlock had occurred, even if Juror 2 

could properly have been excused, the decision to appoint an alternate instead of 

declaring a mistrial was an independent error requiring reversal of the judgment.

IV.

DISPOSITION

The judgment is reversed and this case is remanded for further proceedings 

consistent with this decision.
28

_________________________

RUVOLO, P. J.

We concur:

_________________________

REARDON, J.

_________________________

RIVERA, J.