Filed 10/15/21 P. v. Artale CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER JAMES ARTALE,

Defendant and Appellant.

 D076797

 (Super. Ct. No. SCE374709)

APPEAL from a judgment of the Superior Court of San Diego County, 

Patricia K. Cookson, Judge. Reversed.

Nancy J. King, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Steve 

Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and 

Respondent.

A jury convicted Christopher James Artale of second degree murder 

with a firearm (Penal Code, §§ 187, subd. (a), 12022.5, subd. (a)) after he shot 
2

and killed Aldo Prado.1 Artale claimed he shot Prado in self-defense. The 

jury only reached a guilty verdict after the trial court discharged a holdout 

juror, Juror No. 1. The trial court found Juror No. 1 was “not following the 

law,” “was predisposed[,] and essentially did not participate in the jury 

deliberation process.” Artale contends the trial court erred by discharging

the holdout juror. We agree that, under the heightened standard of review 

that applies to a trial court’s decision to discharge a seated juror, the trial 

court’s decision here is not manifestly supported by evidence. Juror No. 1’s 

inability to render a fair and impartial verdict based on the evidence 

presented at trial does not appear in the record as a demonstrable reality. 

Because we hold that the judgment must be reversed based on the trial 

court’s error in discharging Juror No. 1, it is unnecessary for us to consider 

Artale’s remaining arguments other than his challenge to the sufficiency of 

the evidence. We conclude the evidence is sufficient to sustain his conviction. 

Although we reverse the judgment based on the court’s erroneous discharge 

of a sitting juror, there is no double jeopardy bar to retrial of the case. 

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of this section, we state the facts in the light most 

favorable to the judgment. (See People v. Coleman (2007) 146 Cal.App.4th 

1363, 1366.)

Artale testified in his own defense and stated that he and Prado met in 

2015. Artale admitted he purchased drugs, including heroin, crystal meth, 

and Suboxone, from Prado, and they were also friends. Artale knew that 

Prado had some incidents involving violence in his past, but Artale and his 

wife continued to socialize with him from 2015 through 2017. 

1 Further statutory citations are to the Penal Code unless otherwise 

indicated.
3

On October 1, 2017, Artale agreed to help Prado move out of a room he 

was renting from Annette G. Annette overhead an argument between the 

two men after Artale arrived later than anticipated. Prado was upset with 

Artale for being late, and Artale became angry because Prado was not 

packed. Annette heard Artale say, “ ‘Fuck. What the fuck?’ ” and heard 

Prado tell Artale, “ ‘Shut up’ ” and “ ‘Respect her house.’ ” Annette heard 

Artale say, “ ‘Fuck this shit,’ ” and saw him pull away quickly in his truck. 

Prado was upset after Artale left. He apologized to Annette for Artale’s 

behavior and drove away in his car in the same direction as Artale. 

Artale claimed that Prado picked up a knife and held it about six to 

eight inches from his head during their argument at Annette’s house. Artale 

“was terrified” and did not understand why Prado was so upset. He got into 

his truck and sped away. He later saw Prado was following him. Artale 

testified that Prado was yelling out the window at him and swerving, and 

while they were stopped at a red light, Prado threatened “ ‘I’m going to fuck 

you up.’ ” At some point Artale lost sight of Prado but thought he was still

following him. Artale said he was scared, but he never called 911 or his 

family to alert them that Prado had pulled a knife on him or was following 

him. 

Artale testified that, when he got home, he parked his truck at the curb 

in front of his house. He walked through the security gate down the sloped 

driveway to the “downstairs” area of the house and retrieved a gun. Artale’s 

wife was in the bedroom where he retrieved the gun, but he did not tell her to 

call 911 or alert his parents who were in the home too. Artale went back 

outside with the gun. He left the gun on a bench in the carport, saying he 

“had intentions of working on [his] truck.” Artale then decided to return to 

the top of the driveway and saw Prado coming up the hill with a knife in his 
4

hand. Artale went back down the driveway to retrieve his gun. When he 

turned around, Prado was there, three to five feet behind him. Artale pointed 

the gun at him and said, “ ‘Get out of here.’ ” Prado appeared enraged and 

said, “ ‘You’re not going to shoot me.’ ” After Artale said “ ‘If you come any 

closer, I will,’ ” Prado stated “Fine,” “I’m going to F your stuff up.” Prado 

backed up and went up the driveway, and Artale followed him after briefly 

hesitating. Artale heard a hissing noise; as he came to the top of the 

driveway, he saw Prado “crouched down,” “done slashing” the front tire of his 

truck and “getting up from the [crouching] position.” Prado “took a couple big 

steps . . . up the hill” and stopped at the truck’s rear tire. Prado bent over 

again and was jabbing at the rear tire. Artale told him to stop as he held his 

gun down in front of him. Artale testified that Prado “had his left foot in the 

curb and he had his right knee on the curb and when [Artale] told him to 

stop, that’s when he—he pivoted off his right foot and came up, and he had 

the knife in his right hand and he came up like this [indicating] at [him].” 

Then Artale “raised the gun and [he] fired.” Artale stated he thought Prado 

“was coming right at [him],” he had nowhere to go, and “was out of options.” 

Prado “dropped.” Artale testified he did not know whether Prado took any 

steps toward him when he fired. Artale did not attempt to render aid. He 

immediately went inside and called 911.2 

An eyewitness, Jael K., saw the shooting. He had parked his car 

nearby and was looking for a friend’s house. As Jael stood on the sidewalk 

looking at his phone, he was approached by a man later identified as Prado. 

Prado seemed “a little off” and “pissed off,” and he said to Jael, “ ‘Tell them 

2 Artale’s 911 call was played for the jury. Artale told the operator he 

“just had to shoot somebody that pulled a knife on [him]” and asked for an 

ambulance. 
5

that I did it.’ ” Prado continued walking up the hill to the north, and Jael 

walked southward down the hill. Jael then heard what sounded like someone 

puncturing a tire and air escaping. Jael turned around and saw Prado with 

what looked like a knife in hand kneeling or squatting by a truck, puncturing 

the truck’s tire. Jael saw him quickly look over his right shoulder and then 

start running up the sidewalk, parallel to and in the direction of the back of 

the truck and away from the shooter. A man “pop[ped] out on the sidewalk” 

and “went into a shooter’s stance” with his feet planted and his arms raised 

in front of him, parallel to the ground. The shooter emerged from an area of 

the bushes by the sidewalk. Jael “heard a loud bang” which he assumed was 

a gunshot because of the loud sound and because he saw “smoke coming from 

[the shooter’s] hands.” Jael saw the back of the shooter and could also see his 

arms raised because of the angle at which the shooter was standing. After he 

heard the loud bang and saw smoke come out, Jael saw Prado fall “off of the 

curb behind the truck.” Jael was able to see both Prado and Artale in his 

field of vision and there were no obstructions of his view on the sidewalk. 

Jael did not see Prado slash at the shooter with a weapon. 

Jael hid behind a bush and called 911. A recording of the call was 

played for the jury. Jael told the 911 operator that Prado was “slashing 

someone’s tires and then a guy [Artale] came out of the house and shot 

[Prado], while [Prado] was trying to run away.” Jael described the shooter as 

wearing a white shirt and blue jean shorts.3 He said Artale shot Prado “in 

the back.” 

3 The day of the shooting, Artale was wearing a gray shirt with a large 

company logo on the back, and long pants. The clothes were subsequently 

shown to the jury. 
6

At the scene, Jael told one police officer he was 70 to 80 feet from the 

shooter and told another officer he was 20 feet away from the shooter. When 

Jael met investigators at the scene for a subsequent interview, they 

measured the distance from where Jael said he observed the shooting and 

determined he was approximately 120 feet from the shooter and 145 feet from 

where Prado fell. Jael acknowledged he previously told a police officer that 

he saw Prado “ ‘kind of turn his back to try to run away’ ” before the gunshot 

and that Prado “ ‘was getting ready to run away’ ” when the shot occurred. 

Police arrived on the scene within minutes of the shooting and provided 

first aid to Prado until emergency personnel arrived. Officers testified that 

Prado was on his back, bleeding from wounds on his forehead and the side of 

his head. An open box cutter lay on the ground approximately 24 inches from 

his body.4 

An officer rode with Prado in the ambulance to the hospital. Prado was 

in a lot of pain, yelling and moaning. Prado said “his girl’s ex-boyfriend” shot 

him and then said his name was “ ‘Mark Coblin.’ ” Prado also said his 

girlfriend’s name was “ ‘Salis’ ” and then said, “ ‘He stabbed me.’ ” Prado said 

he was trying to get his money from a safe inside the house, and he said, 

“ ‘Debbie let me in.’ ” The officer asked Prado why he was shot, and Prado 

said, “ ‘I told him I was going to kick his ass.’ ” Prado was unable to provide 

4 A detective described it as a “folding box cutter style knife” or a 

“commercial utility knife” measuring six inches, with a one-inch black or dark 

metal blade. 
7

more responses.5 Prado underwent surgery at the hospital and died on 

October 3 after he was removed from life support. 

Meanwhile, at the crime scene, officers collected the box cutter and a 

shell casing found about six or seven feet in front of Artale’s truck. Officers 

observed that the front passenger tire of the truck was flat; there was a oneinch cut in the tire. Officers located Prado’s car parked on an adjacent street. 

Artale complied with officers’ directions, identified himself as “ ‘the 

shooter,’ ” voluntarily accompanied officers to the police station, and made a 

statement to detectives before he was subsequently arrested. Portions of 

Artale’s statement were played for the jury. Artale told officers he had gone 

to Prado’s home to help him move, and Prado “started yelling at [him]” and 

threatened him with a fold-out utility knife. After Artale left, he noticed 

Prado was following him, “yelling at [him], trying to . . . ram into [him].” He 

described retrieving his firearm when he got home and said:

“And then I didn’t see him. So I put [the gun] down on the 

bench, and I walked up on the hill, and I looked down—I 

saw him walking up the street, knife in hand. And before I 

could even get down to the thing, to the—back to the 

bottom of the carport, he was coming at me, and so I picked 

up the firearm, and, and I pointed it at him. I said stop. 

This is crazy, I said, go away. And, uh, he, uh, he, he 

walked back up the driveway; he slashed a tire on the tr, 

the green truck. So I followed him up, I saw him do that, 

and I said stop it. And he went to go to the back, I said 

stop. And he turned around, back at me, and I—I fired. 

That’s it. I’m pretty shook up.” 

5 Officers were unable to locate anyone named “Mark Coblin” and later 

confirmed that Prado had not been stabbed and had not entered Artale’s 

house that day. 
8

Artale told police that Prado was “probably” using “dope.” But Artale 

falsely denied using narcotics when the police asked about his own drug use. 

Artale did not tell the police about any of the incidents of violence involving 

Prado which he testified to at trial. 

The prosecution’s forensic pathologist testified that Prado’s autopsy 

revealed gunshot wound injuries to the head as well as a graze wound on his 

right shoulder. The autopsy indicated that, with respect to the gunshot 

wound of his head, the bullet entered at the bottom of Prado’s right ear and 

exited through his forehead. The bullet traveled through Prado’s brain with 

a slightly upward trajectory causing injuries to Prado’s right frontal and 

temporal lobes and the basal ganglia. For the graze wound on his right 

shoulder, the direction was from behind the body toward the front of the 

body. The wounds were “consistent with having been caused by one bullet.” 

Toxicology reports indicated Prado had used methamphetamine, 

heroin, and cannabis. The methamphetamine levels were present in a 

concentration “within a range that’s been associated with violent and 

irrational behavior.” 

The prosecution’s crime scene reconstructionist determined that the 

evidence was consistent with a single shot being fired and consistent with the 

deceased moving away from the shooter at the instant of the gunshot.6 He 

testified that this model was consistent with Jael’s account that Prado was 

“towards the back of the truck and when he was struck, [or] when the 

6 The expert explained that if a body was static when shot in the head, it 

would likely “just . . . fall down at that location,” and if it was moving, it 

would fall “in the direction of body momentum.” Here, he considered the 

eyewitness account placing the shooter on the portion of the sidewalk closest 

to the house, Prado’s body’s location in the street, with his shoes near the 

curb, and the three “defects” or wounds observed during the autopsy. 
9

gunshot was heard, [and] he fell off the sidewalk and fell behind the truck.” 

If Prado had not been moving at the time of the shot, he would expect to find 

the body “right at the edge of the sidewalk and the curb.” He acknowledged, 

however, that there was a possibility that Prado was facing Artale when the 

decision to pull the trigger was formed and then turned prior to being shot, 

because “it takes [between one quarter and one third of a second] from the 

decision to pull the trigger, and a person can certainly change their position 

in that time frame.” 

In his defense, Artale called Prado’s former psychiatrist to testify that 

Prado had previously been diagnosed with “possible bipolar disorder,” posttraumatic stress disorder due to experiencing prior physical and emotional 

abuse, and polysubstance abuse, including heroin and marijuana dependency 

abuse. Over the course of his treatment, Prado exhibited psychosis and 

demonstrated poor reality testing, visual and auditory hallucinations, and 

extreme paranoia. Just weeks before his death, the psychiatrist wrote a 

letter on Prado’s behalf diagnosing Prado with “a chronic psychiatric 

disability” and indicating that Prado continued to intermittently abuse 

heroin. 

Artale also introduced evidence of Prado’s 2007 felony conviction for 

assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)) 

and misdemeanor conviction for inflicting injury on a partner (§ 273.5). In 

addition, the jury heard excerpts of a police interview of Prado’s estranged 

girlfriend, Shalise G., who described being beaten by Prado in a casino 

parking lot approximately one month earlier and described a second 

altercation two weeks earlier when Prado allegedly bit her arm. Shalise told 

the detective that Prado “gets in this rage where he goes crazy and it’s, and 

it’s for a moment, and then he snaps out of it, and he gets all crazy, but then 
10

like an hour later, he is like your best friend again. He’ll be apologizing and 

makes everything right.” She said “when [Prado] used to get in his rant and 

raves, he’d threatened to murder me, to kill me.” 

The defense called an independent expert to testify about reaction 

times, firearms and the use of force, and crime reconstruction. The expert 

testified that “from a 21-foot distance at a standing start, the average adult 

male could close the gap and deliver a knife thrust in 1.5 seconds.” The 

expert testified that the average person will react to an anticipated stimulus 

within a quarter of a second. However, when a stimulus is not anticipated 

but comes as a surprise, reaction time is generally about three times longer, 

or three-quarters of a second. The expert testified that as a “rule of thumb,” 

a quarter turn can be accomplished in a quarter second, and a half turn in a 

half second, so if Prado was facing Artale, it would have taken him a quarter 

or half a second to turn away. Presented with a hypothetical scenario, the 

expert opined that if someone armed with a gun saw an assailant turn 

toward them with a knife and they decide to shoot, and if then the assailant 

suddenly, unanticipatedly, turns away, it would be “humanly impossible” to 

prevent the shooter from firing because the turn takes a quarter second, 

while the response takes three-quarters of a second. The expert opined it was 

“very common” under such circumstances for a shooter to be surprised to 

learn they had shot someone in the back. On cross-examination, the expert 

admitted that the wound path was consistent with the prosecution’s theory 

that Prado had turned to run away when he was shot. 

In closing argument, the prosecutor argued that Artale killed Prado in 

anger while Prado was running away and encouraged the jury to believe 

Jael’s account over Artale’s. Defense counsel argued that Artale’s testimony 

established that he was justified in killing Prado in self-defense. Jael’s 
11

eyewitness account was “relatively unreliable” because he was inconsistent in 

describing what happened, inaccurate in describing the shooter’s clothing, 

and inconsistent in describing how close or far he was from Prado and Artale 

at the time of the shooting. 

After two days of deliberation, Juror No. 1 was discharged and replaced 

with an alternate juror.7 The jury subsequently found Artale guilty of 

murder in the second degree and found true all four of the firearm 

allegations. (§§ 187, subd. (a), 12022.53, subd. (b)-(d), 12022.5, subd. (a).) 

After denying Artale’s motions for a new trial and to reduce the judgment to 

involuntary manslaughter, the trial court sentenced him to 15 years to life in 

prison, plus 10 years for the firearm enhancement. (§ 12022.53, subd. (b).) 

DISCUSSION

I.

The Trial Court Abused Its Discretion in Discharging a Holdout Juror

A. Additional Background

Prior to deliberations, the jury was instructed, “Do not use the Internet 

or dictionary in any way in connection with this case either on your own or as 

a group. Do not investigate the facts or the law or do any research regarding 

this case either on your own or as a group. Do not conduct any tests or 

experiments, visit the scene of any event involved in this case. If you happen 

to pass by this particular street, do not stop or investigate.” (CALCRIM 

No. 201.)

The jury deliberated for a full day on a Thursday before being excused 

for the weekend. The jury resumed deliberations the following Monday at 

9:00 a.m. At 2:25 p.m. that day, the foreperson submitted a note to the court 

7 The circumstances surrounding the discharge of Juror No. 1 are 

discussed in further detail post.
12

stating, “We have reached an impasse and need some guidance. All are in 

agreement except Juror [No.] 1 who openly admitted to doing an experiment 

on her own and doesn’t appear to be following the [c]ourt instruction. There 

is concern that her mind was set when she walked in. We need some 

guidance.” 

With counsel present, the court noted two main issues: the impasse 

and potential juror misconduct. The court indicated it intended to call in the 

foreperson, Juror No. 9, to inquire. However, the bailiff reported that Juror 

No. 1 was limping and appeared to be in pain, so the court called in Juror 

No. 1, who reported that her “hip popped out of place” because she “sat in a 

chair too long,” and that she had taken over-the-counter-pain medication that 

“hasn’t done anything.” When asked, she confirmed twice that she was able 

to continue deliberating and stated she would move and walk around to 

relieve the pain. 

The court then called in Juror No. 9. The court confirmed with the 

foreperson that there was an “issue of an impasse.” The court stated it did 

not want to talk about “the contents of the deliberations” and asked about the 

experiment Juror No. 1 “openly admitted to doing.” Juror No. 9 responded 

that, “She did it on her own,” and “[i]t wasn’t anything major, but it 

concerned me because of her attitude toward reviewing and participating.” 

With respect to the comment that “her mind was set when she walked in,” 

Juror No. 9 stated that was based “[p]rimarily” on the juror’s “attitude, and 

while we’re all reading through documents and looking at things, she’s 

basically not doing that and not participating a lot in discussion. It’s minimal 

and only if I approach her . . . mostly it’s me saying, ‘Okay. What do you 

think?’ ” The court asked, “Does she respond?” Juror No. 9 replied, “She 

does, but . . . there’s not really any discussion. It’s just, ‘This is it.’ [¶] I’m 
13

not saying that she’s wrong in having made up her mind, and, you know, 

we’ve actually talked about that, that she has that right as a juror, but it’s 

just her lack of what I feel would be useful review and participation in the 

process. I’m concerned about that.” 

The court then reread the following portions of the jury instructions to 

the entire jury:

“CALCRIM 200, duties of judge and jury: You must decide 

what the facts are and it’s up to all of you and you alone to 

decide what happened based only on the evidence that has 

been presented to you in this trial.

“CALCRIM 201: Do not use the Internet or dictionary in 

any way in connection with this case either on your own or 

as a group. Do not investigate the facts or the law or do 

any research on this case either on your own or as a group. 

Do not conduct any tests or experiments or visit the scene 

of any event involved in this case. If you happen to pass by 

the scene, do not stop or investigate.” 

The court then asked the jury, by show of hands, “Does anyone feel that 

there are jurors who are not participating in the jury deliberation process?” 

Nine of the 12 jurors raised their hands in the affirmative (Juror Nos. 3, 4, 5, 

7, 8, 9, 10, 11, and 12). 

The court asked, “Do you believe that there are any jurors on this panel 

who have . . . made up his or her mind prior to the beginning of 

deliberations?” Nine of the 12 jurors raised their hands in the affirmative

(Juror Nos. 2, 3, 4, 7, 8, 9, 10, 11, and 12). 

The court then asked, “Do you have any knowledge or was there any 

discussion about any juror or jurors who participated in an experiment in this 

case?” Nine of the 12 jurors raised their hands in the affirmative (Juror 

Nos. 3, 4, 5, 6, 7, 8, 9, 11, and 12). 
14

The court indicated it intended to question each juror alone, beginning 

with Juror No. 12. At a sidebar conference, defense counsel stated that no 

juror should be removed, and objected to individually questioning the jurors, 

stating, “what is the relevance . . . if three people feel that that juror is 

participating and hasn’t done anything wrong?” The court proceeded to 

question the jurors individually.8

Juror No. 12 stated she believed Juror No. 1 was not following the law 

because “[s]he told us today that . . . over the weekend . . . she acted out 

something.” Juror No. 12 stated that Juror No. 1 shared that information 

with all of the other jurors and continued, “[W]e asked her if that affected her 

decision and she did say no, but she’s also told us today that she has a firm 

belief—I’m trying to say it without saying too much.” The court asked, “Well, 

I want to know if in your opinion she’s not following the law.” Juror No. 12 

stated she “believe[d] so,” and she further “believe[d]” Juror No. 1’s mind was 

made up prior to the beginning of the deliberations. Juror No. 12 stated she 

did not think the experiment “was a new type of evidence” and commented 

that Juror No. 1 appeared to be in “a lot of pain” that day.9

Juror No. 11 stated she felt Juror No. 1 was not participating in the 

jury deliberation process and felt she was “not following the jury 

instructions.” Juror No. 1 had disclosed that she participated in an 

experiment: “she tried to do demonstrations at home.” Juror No. 11 stated 

8 The court did not question Juror No. 9, the foreperson who had written 

the note, a second time. 

9 The court used the term “new type of evidence” first when questioning 

this juror. No explanation was provided on what this meant; as discussed 

post, the term is used in case law discussing whether an experiment is 

improper. 
15

Juror No. 1’s disclosure did not affect her (Juror No. 11’s) decision-making in 

any way. 

Juror No. 10 stated she felt Juror No. 1 was not following the law and 

“believe[d]” she made her mind up prior to the beginning of deliberations. 

She stated that Juror No. 1 disclosed she had participated in an experiment, 

but this did not affect her (Juror No. 10’s) decision-making at all. 

Juror No. 8 stated she believed that one juror—a female she could 

describe but could not identify by name or number—was not following the 

law and believed she had made up her mind prior to the commencement of 

deliberations. Juror No. 8 had “just heard something today about someone 

having performed an experiment” and was “not even positive if it was the 

same juror.” The information about the experiment did not have an impact 

on Juror No. 8’s deliberations. Juror No. 8 commented that this juror seemed 

to “not [be] listening to actually exactly what the law says about what’s 

required to reach a verdict.” 

Juror No. 7 stated that she “felt” Juror No. 1 was not following the law 

and “appeared” to have made her mind up prior to the commencement of 

deliberations. Juror No. 1 had disclosed she conducted an experiment, but 

this disclosure did not affect Juror No. 7’s decision-making. Juror No. 7 

stated she thought Juror No. 1 was “just being stubborn. She painted herself 

into a corner, but—and then she told us about her experiment, so a 

combination of all those things makes me think that’s just not cool.” 

When asked if there was “any juror in the jury who [he] believe[d] is

not following the law,” Juror No. 6 responded that he “followed the 

instructions to get to what [he] got.” He stated he “couldn’t tell” if there was 

a juror in deliberations who seemed to have made up his or her mind prior to 
16

the commencement of deliberations and was unaware of any discussion about 

an experiment. 

When Juror No. 5 was asked if he felt there was a juror who was not 

following “the law,” he stated he felt there was a juror who was not following 

“[y]our instructions,” but he did not know whether there was a juror who had 

made up his or her mind prior to the commencement of deliberations. He was 

aware that Juror No. 1 had done an experiment that “was mentioned” during 

deliberations. Juror No. 5 stated he was not concerned about Juror No. 1’s 

conduct and explained, “I think she’s just very firm in her belief, but no other 

concerns other than that.” 

Juror No. 4 stated he believed Juror No. 1 was not following the law 

and seemed to have made up her mind prior to the commencement of 

deliberations. He stated he “was told” that someone performed an 

experiment and was aware of “[s]ome” details of that experiment, but the 

experiment did not affect his decision-making. He stated, “I just feel that 

Juror No. 1, one, had—probably had her mind made up before we started 

deliberations and does not seem to be willing to follow what I believe the jury 

instructions were.” 

Juror No. 3 stated she believed Juror No. 1 was not following the law 

and seemed to have made up her mind prior to the commencement of 

deliberations. She stated Juror No. 1 “just mentioned that she—I guess her 

brother or father or somebody had a truck and—about the same size as the 

truck that was on the case and that she—.” Before the juror could continue, 

the court interjected, “Without telling me any details, . . . she disclosed all 

that to the jurors?” Juror No. 3 responded in the affirmative, but stated that 

it did not affect her decision-making. Juror No. 3 then stated, “I don’t know if 

it’s because she’s not feeling well, but I just get this vibe that it’s very 
17

negative. And we’ve all been—you know, obviously we all work hard and 

everything, and I just have that feeling that it’s like, ‘Okay. Well, whatever,’ 

because she kind of had a negative attitude when we first started.” 

Juror No. 2 stated he believed Juror No. 1 was not following the law 

“according to the rules” and seemed to have made up her mind prior to the 

commencement of deliberations. He stated there was discussion about 

“[s]ome measurements and an experiment” conducted by Juror No. 1 but that 

did not affect his decision-making in any way. 

The trial court then questioned Juror No. 1, asking if she had 

conducted any experiments over the weekend. Juror No. 1 replied she had, 

by herself, and that she “completely forgot about” the law prohibiting it and 

she “wasn’t even thinking.” She stated she shared that with the jury and 

that other jurors probably believed it was her who was not following the law. 

The trial court stated, “I appreciate your honesty.” Juror No. 1 denied that 

her mind was made up prior to deliberations. She stated “that one 

instance”—“[t]he one about conducting experiments” was the only time she 

did not follow the law. The trial court thanked her for her honesty. 

Defense counsel stated Artale opposed excusing the witness, arguing 

that Juror No. 1 was honest with the court and explained that the only 

instance in which she did not follow the law was with respect to the 

“experiment,” and other jurors indicated “it wasn’t significant in terms of 

what was done.” 

The trial court told the attorneys, “as soon as I heard that she had a 

comparable truck—I mean, that in my mind goes well beyond ‘Don’t conduct 

experiments.’ She actually set one up. So I’ve kind of withdrawn from that 

original position that it was a minor versus major experiment.” The court 

stated, “Well, the [c]ourt is going to discharge Juror No. 1. I feel that there is 
18

substantial evidence to show that, with one exception where the juror didn’t 

make up his mind one way or the other—Juror No. 6—all felt that Juror 

No. 1 is not following the law. They all felt that Juror No. 1 was predisposed 

and essentially did not participate in the jury deliberation process. And the 

experiment—I’m not so sure it’s quote, new evidence, but it is concerning to 

the [c]ourt that she would even go so far as to put up a truck and do some 

measurements.” 

Defense counsel reiterated Artale’s objection to excusing the juror. The 

court asked the clerk to randomly choose one of the three alternate jurors, 

and Alternate Juror No. 3 was selected to replace Juror No. 1. The court 

then instructed the bailiff “to advise Juror No. 1 that she is excused by the 

[c]ourt and to thank her for her service.” 

The following day, the trial court explained this was only the second 

time in 27 years that it had received “a jury note about potential misconduct 

or refusal to deliberate,” and it inquired of each juror because it took the 

matter seriously. The court then summarized its decision to remove Juror 

No. 1 as follows:

“When I excused Juror No. 1 yesterday—I’m looking at the 

note—I did so because I felt that she was not following the 

law. When I inquired globally of the jurors, with the 

exception of one juror who answered one question 

affirmatively and one did not raise his hand, when I 

questioned them further, it appeared that there might even 

have been a language problem with the manner in which I 

asked the question because he thought I was referring to 

him. But, in any event, the jury was almost unanimous on 

Juror No. 1 not following the law and also that her mind 

was made up before the commencement of deliberations.

“I did have concerns about the experiment that was 

obviously conducted, and as counsel could see, I was trying 

to be very careful about not really talking about the 

deliberative process but rather the conduct of the juror, but 
19

it does seem as if she conducted an experiment with a truck 

that was not identical but similar to the truck that was 

involved in this case. And as you both know, 

measurements and distances were very important in this 

trial. 

“Whether or not that experiment produces new evidence as 

a matter of law, I don’t know. It’s a close call. But that 

would have been the third reason that the [c]ourt would 

show that there was basically substantial evidence that 

this juror was not taking her oath seriously.” 

The alternate juror was sworn in and the court instructed the jury to 

begin deliberations anew. The newly reconstituted jury reached a guilty 

verdict after approximately two and a half days of deliberations. 

B. Applicable Law

“[S]ection 1089 sets forth the procedure for removing a sitting juror.” 

(People v. Boyette (2002) 29 Cal.4th 381, 462.) It provides, in relevant part:

“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 . . . .” (§ 1089.) “Good cause exists to discharge a juror when 

the juror loses his or her ability to render a fair and impartial verdict based 

on the evidence presented at trial.” (People v. Barton (2020) 56 Cal.App.5th 

496, 508 (Barton).) “ ‘A juror’s inability to perform his or her 

functions . . . must appear in the record as a “demonstrable reality” and bias 

may not be presumed.’ ” (People v. Beeler (1995) 9 Cal.4th 953, 975 (Beeler), 

abrogated on grounds as stated in People v. Pearson (2013) 56 Cal.4th 393, 

462.)

“Removing a juror is, of course, a serious matter. . . . While a trial 

court has broad discretion to remove a juror for cause, it should exercise that 
20

discretion with great care.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 

fn. omitted (Barnwell).) “A court’s intervention may upset the delicate 

balance of deliberations. The requirement of a unanimous criminal verdict is 

an important safeguard, long recognized in American jurisprudence. This 

safeguard rests on the premise that each individual juror must exercise his or 

her own judgment in evaluating the case. The fact that other jurors may 

disagree with a panel member’s conclusions, or find disagreement 

frustrating, does not necessarily establish misconduct.” (People v. Allen and 

Johnson (2011) 53 Cal.4th 60, 71 (Allen).) “[A] trial court should be wary of 

relying on the opinions of jurors, rather than on its own consideration of 

objective facts.” (Id. at p. 75.) “The court cannot substitute the opinions of 

jurors for its own findings of fact.” (Ibid.) 

This court’s “review of the decision to remove a seated juror is not 

conducted under the typical abuse of discretion standard, but rather under 

the ‘demonstrable reality’ test.” (People v. Fuiava (2012) 53 Cal.4th 622, 711 

(Fuiava).) “ ‘[T]he demonstrable reality test entails a more comprehensive 

and less deferential review. It requires a showing that the court as a trier of 

fact did rely on evidence that, in light of the entire record, supports its 

conclusion that [good cause for removing the juror] was established.’ ” (Id. at 

p. 712.) 

Under the demonstrable reality standard, the reviewing court “must be 

confident that the trial court’s conclusion is manifestly supported by evidence 

on which the court actually relied.” (Barnwell, supra, 41 Cal.4th at p. 1053.) 

In reaching that conclusion, this court considers “not just the evidence itself, 

but also the record of reasons the court provides.” (Ibid.) The “heightened” 

and “more stringent” demonstrable reality standard “more fully reflects an 

appellate court’s obligation to protect a defendant’s fundamental rights to due 
21

process and to a fair trial by an unbiased jury.” (Id. at p. 1052.) Indeed, the 

trial court’s discretion to discharge a juror for cause under section 1089 “is 

‘bridled to the extent’ [that] the juror’s inability to perform his or her 

functions must appear in the record as a ‘demonstrable reality,’ and ‘court[s] 

must not presume the worst’ of a juror.” (People v. Bowers (2001) 

87 Cal.App.4th 722, 729 (Bowers).) “[H]owever, even under the demonstrable 

reality standard the reviewing court does not reweigh the persuasive value of 

the evidence.” (Fuiava, supra, 53 Cal.4th at p. 714.) Accordingly, reviewing 

courts must defer to the trial court’s assessments of a juror’s credibility 

“based ‘on firsthand observations unavailable to us on appeal.’ ” (People v. 

Powell (2018) 6 Cal.5th 136, 156; Barnwell, at p. 1053.)

C. Analysis

The trial court discharged Juror No. 1 because (1) she had conducted an 

experiment in violation of the court’s instructions; and (2) she had prejudged 

the case and refused to deliberate. “In taking the serious step of removing a 

deliberating juror the court must be mindful of its duty to provide a record 

that supports its decision by a demonstrable reality.” (Barnwell, supra, 

41 Cal.4th at p. 1053.) We conclude the record here fails to support the 

court’s decision under this heightened standard of review.

1. Violation of the Court’s Instructions

“[T]he jury must follow the court’s instructions, ‘receiv[ing] as law what 

is laid down as such by the court.’ ” (People v. Engelman (2002) 28 Cal.4th 

436, 442 (Engelman); § 1126.) “A [juror’s] failure to follow the court’s 

instructions is misconduct and a basis for dismissal.” (People v. Peterson

(2020) 10 Cal.5th 409, 472 (Peterson); accord, Engelman, at p. 443.) “A juror 

commits misconduct if the juror conducts an independent investigation of the 

facts [citation], brings outside evidence into the jury room [citation], injects 
22

the juror’s own expertise into the deliberations [citation], or engages in an 

experiment that produces new evidence.” (People v. Wilson (2008) 44 Cal.4th 

758, 829.) But “[n]ot every jury experiment constitutes misconduct. 

Improper experiments are those that allow the jury to discover new evidence 

by delving into areas not examined during trial. The distinction between 

proper and improper jury conduct turns on this difference. The jury may

weigh and evaluate the evidence it has received. It is entitled to scrutinize 

that evidence, subjecting it to careful consideration by testing all reasonable 

inferences. It may reexamine the evidence in a slightly different context as 

long as that evaluation is within the ‘ “scope and purview of the evidence.” ’ 

[Citation.] What the jury cannot do is conduct a new investigation going 

beyond the evidence admitted.” (People v. Collins (2010) 49 Cal.4th 175, 249

(Collins); see People v. Wismer (2017) 10 Cal.App.5th 1328, 1336 [the same 

principles outlined in Collins apply “regardless of whether the new evidence 

is generated outside the courthouse or inside the jury deliberation room”].)10 

In this case, the jury was instructed not to conduct experiments, and 

Juror No. 1 admitted she performed some type of experiment over the 

weekend and then discussed it with the jury. But the record is almost 

completely devoid of any meaningful inquiry regarding the substance of the 

experiment. (Engelman, supra, 28 Cal.4th at p. 444 [grounds for discharge 

must appear in the record “ ‘as a “demonstrable reality” ’ ” “after reasonable 

inquiry by the court”].) There is no clear indication what Juror No. 1 did or 

what she disclosed to the jury after she did it. The case law makes clear that 

10 The court stated it discharged Juror No. 1 for failing to “follow[] the 

law,” apparently based on the juror performing an experiment. Other than 

the juror failing to deliberate and prejudging the case, the court cited no 

other basis for discharging the juror. We discuss these other grounds post, 

and focus on the juror’s experiment in this section. 
23

these types of details are critical to an appellate court’s evaluation of 

allegations of juror misconduct. 

In People v. Cooper (1979) 95 Cal.App.3d 844, 848-849 (Cooper), the 

defendant was convicted of possession of heroin for sale after a police officer 

saw him reach toward his waistband and throw a shiny object which turned 

out to be a bag containing heroin onto a lawn. The defendant filed a motion 

for new trial after he was convicted, alleging two incidents of juror 

misconduct relevant here. First, a juror “drove her car by some pedestrians 

and ‘estimated whether or not a person seated in a moving car could make 

the observations testified to by the police officers’ from which she ‘concluded’ 

that the officers’ testimony was credible.” (Id. at p. 852.)11 Second, “the 

jurors ‘reenacted’ defendant’s throwing of the plastic bag,” further confirming 

the police officers’ testimony. (Ibid.) The Court of Appeal affirmed the denial 

of defendant’s motion for new trial on the basis that no juror misconduct 

occurred. (Id. at pp. 853-854.) The court found that the juror’s estimation of 

distances and conclusion that the officers were credible were “mental 

processes” that “are in no way objectively verifiable,” and the act of driving 

her vehicle, which could be verified, “does not constitute misconduct.” (Id. at 

11 The police officers were driving two to three miles per hour when they 

observed the defendant throw the object. (Cooper, supra, 95 Cal.App.3d at 

p. 848.)
24

p. 853.)12 With respect to the reenactment, the court stated that 

“experiments by the jury are prohibited only where the result is the 

production of ‘new’ evidence.” (Ibid.) Because one of the officers “had 

demonstrated the manner in which defendant had thrown the contraband,” 

the court concluded the experiment did not result in the generation of new 

evidence and therefore did not constitute misconduct. (Id. at p. 854; see also

Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 461 [noting it was “not at 

all clear that [juror’s] actions were an impermissible experiment and thus 

misconduct” where the juror drove his car with one eye covered to assess his 

vision because it “did not invade a new field but merely [was] an experiment 

on an issue within the evidence, to wit, the ability of a one-eyed individual to 

drive”].) 

Similarly, in Collins, a juror went home and used his computer to 

create a diagram of the trajectory of the bullet used to shoot the victim. 

12 Because Cooper involved a motion for new trial, it was necessary for the 

court to determine whether the proffered evidence could be considered 

pursuant to Evidence Code section 1150. “Under Evidence Code 

section 1150 . . . , a court cannot consider evidence of a juror’s subjective 

reasoning process in deciding whether to grant a new trial based on 

purported juror misconduct.” (Allen, supra, 53 Cal.4th at p. 75.) As our 

Supreme Court recognized in Allen, Evidence Code section 1150’s “underlying 

policy provides guidance” in reviewing challenges to the trial court’s 

discharge of a sitting juror. (Allen, at p. 75.) We therefore limit our 

consideration to the overt acts reflected in the testimony elicited by the court, 

and not the subjective reasoning process of the jurors. (See Collins, supra,

49 Cal.4th at p. 250 [declining to consider “juror opinion, conclusions drawn 

by others about jurors’ states of mind or level of understanding, and the 

particular significance jurors attached to the evidence at trial” because 

“[t]hese were improper intrusions into the subjective reasoning process of the 

jurors in violation of Evidence Code section 1150”].) We do not consider any 

juror’s statements as to whether Juror No. 1’s experiment affected the jury’s 

deliberations or decision-making. 
25

(Collins, supra, 49 Cal.4th at pp. 237-238.) The juror said that he “ ‘worked 

out height patterns and came up with the fact that anyone standing six feet 

away from another person would have to just about be standing on a stool 

two and a half feet high to get a downward trajectory through the back of the 

skull of an individual . . . .’ ” (Id. at p. 237.) The juror explained that he had 

relied on trial testimony regarding the defendant’s height and evidence of the 

victim’s height obtained from the coroner’s report. (Id. at pp. 237, 253.) The 

following day during deliberations, the juror staged a demonstration based on 

his diagram to support his conclusions regarding the manner of killing and 

the relative positions of the shooter and victim. (Id. at pp. 237-239, 252.) 

Our Supreme Court held this was not juror misconduct because the juror’s 

“individual contemplation of the evidence” while separated from the other 

jurors did not introduce extraneous evidence into the jury deliberations. (Id. 

at p. 256.) “Nor did [the juror’s] use of the computer to draw his diagram 

elevate his actions to misconduct.” (Id. at p. 255.) The juror used his 

computer only to “diagram the positions of the defendant and [the victim] in 

order to visualize how [the victim] suffered his particular wound.” (Id. at 

p. 252.) It was not an improper experiment because it did not “result[] in the 

acquisition of any new facts” and instead “was simply his own permissible 

thinking about the evidence received.” (Ibid.; see also Bormann v. Chevron 

United States (1997) 56 Cal.App.4th 260, 263-264 [juror did not commit 

misconduct in preparing a written summary of her thoughts at home and 

bringing it into the jury room so long as “such notations are the product of the 

juror’s own thought processes and the evidence, rather than extraneous 

influences”].) 

By contrast, in People v. Vigil (2011) 191 Cal.App.4th 1474, 1486

(Vigil), the Court of Appeal concluded a juror “crossed the line into 
26

misconduct” by conducting an experiment at home to see how difficult it 

would be for a right-handed person to raise a rifle and point it out the 

window of a passenger seat of a vehicle. The juror performed the experiment 

using a broomstick, and told other members of the jury it was unlikely the 

defendant (who was driving) was unaware that the passenger was going to 

shoot because of how the rifle would have to be maneuvered before shooting 

out the window. (Id. at p. 1482.) The appellate court explained that the 

“distinction [between proper and improper experiments] usually turns on 

whether the juror’s investigation stayed within the parameters of admitted 

evidence or created new evidence, which the injured party had no opportunity 

to rebut or question.” (Id. at p. 1484.) The experiment in Vigil was improper 

because it “ignored several variables that could have skewed the results” 

including the characteristics of the interior of the vehicle and the height and 

weight of the driver and shooter. (Id. at p. 1486.) The juror also assumed, 

without evidentiary support, that the driver was right-handed. (Ibid.) “The 

result of the experiment was then reported to the deliberating jurors as if it 

were scientific confirmation of the juror’s views on a vital issue in the case.” 

(Ibid.; see also People v. Castro (1986) 184 Cal.App.3d 849, 852-854 [juror 

engaged in improper experiment by using binoculars at home to see if the 

officer could see what he had testified to, and then reported his finding to 

other jurors; there was no showing that the juror used the same type of 

binoculars as the officer, or that the lighting conditions and distances 

involved were similar to the conditions facing the officer].) 

These cases demonstrate we are missing the type of information needed 

to conclude Juror No. 1 engaged in an improper experiment justifying the 

court’s decision to discharge her. Juror No. 1 acknowledged she had 

conducted an experiment and stated she “completely forgot about” the law 
27

prohibiting it and she “wasn’t even thinking.” She stated “that one 

instance”—“[t]he one about conducting experiments”—was the only time she 

did not follow the law. The other jurors described the experiment in very 

general terms: “she tried to do demonstrations at home”; “she acted out 

something”; she “mentioned . . . her brother or father or somebody had a 

truck . . . about the same size as the truck that was on the case”; and there 

was discussion about “[s]ome measurements and an experiment” conducted 

by Juror No. 1. The court concluded from these statements that Juror No. 1 

“put up a truck and [did] some measurements” or “conducted an experiment 

with a truck that was not identical but similar to the truck that was involved 

in this case.” In explaining why it discharged the juror, the court emphasized 

that “measurements and distances were very important in this trial.”

However, “[n]ot every jury experiment constitutes misconduct.” (Collins, 

supra, 49 Cal.4th at p. 249.) It is not clear from the record how the truck was 

used (if at all), what measurements were taken (if any), or how those 

measurements were used (if at all). Similarly, it is not clear what “distances” 

(if any) were used in the experiment; the trial court mentioned the 

importance of “distances” in the trial, but none of the jurors said the 

experiment involved “distances.”13 In any event, there is no categorical 

prohibition on performing an experiment that involves measurements, 

distances, or other types of estimations so long as they are not based on 

extrinsic evidence. (See, e.g., Cooper, supra, 95 Cal.App.3d at pp. 852-853 [no 

juror misconduct occurred where juror drove her car by some pedestrians and 

13 As summarized ante, an eyewitness testified about his observations of 

the shooting from various distances, and the victim’s location near a truck 

prior to the shooting. We do not know whether Juror No. 1’s experiment was 

intended to replicate some or all aspects of this testimony, or something else 

entirely. 
28

estimated whether officers driving at a slow speed could observe what they 

had testified to at trial]; Collins, at pp. 237-238 [no misconduct where juror 

“ ‘worked out height patterns’ ” and used his home computer to create a 

diagram of the trajectory of the bullet used to shoot the victim].) The trial 

court here did not determine whether the juror conducted an experiment that 

resulted in the generation of new evidence, or whether the juror shared any 

extrinsic evidence with other members of the jury. We cannot tell whether 

Juror No. 1 performed a permissible type of experiment as in Cooper and 

Collins, or an impermissible one as in Vigil and Castro. It is impossible to 

discern whether “the juror’s investigation stayed within the parameters of 

admitted evidence or created new evidence, which the injured party had no 

opportunity to rebut or question.” (Vigil, supra, 191 Cal.App.4th at p. 1484.)

We recognize the challenges facing trial courts responding to 

allegations of juror misconduct. As our Supreme Court explained: “A trial 

court made aware of . . . 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 
29

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

been retained.” (Fuiava, supra, 53 Cal.4th 622 at pp. 710-711, fn. omitted.) 

The court here was legitimately concerned with maintaining the 

secrecy surrounding the jury’s deliberations. But “such secrecy may give way 

to reasonable inquiry by the court when it receives an allegation that a 

deliberating juror has committed misconduct.” (Engelman, supra, 28 Cal.4th 

at p. 443.) Having decided it was necessary to inquire of the jurors, it was 

incumbent on the trial court to create a sufficient record to support its 

decision to discharge Juror No. 1. (Barnwell, supra, 41 Cal.4th at pp. 1052-

1053 [decision must be supported “by a demonstrable reality”].) In the course 

of investigating whether good cause existed to replace Juror No. 1, the trial 

court could have asked what experiment she conducted—and whether she 

communicated what she had done to other members of the jury—without 

asking about the jury’s thought processes. But that did not occur. Without 

even the most basic facts about the nature of Juror No. 1’s experiment, the 

record here is inadequate. 

We further recognize that “[i]n appropriate circumstances a trial judge 

may conclude, based on a juror’s willful failure to follow an instruction, that 

the juror will not follow other instructions and is therefore unable to perform 

his or her duty as a juror.” (People v. Ledesma (2006) 39 Cal.4th 641, 738; see 

Fuiava, supra, 53 Cal.4th at p. 711 [juror who understands the court’s 

instructions but cannot follow them because of personal bias is properly 

discharged under section 1089, even without further inquiry into the juror’s 

state of mind].) But the court did not make this type of finding here. It 

declined to determine whether the experiment constituted “new evidence,” 

and it similarly did not find that the juror’s actions cast doubt on her ability 
30

to follow the court’s instructions if kept on the jury.14 (Cf. Peterson, supra, 

10 Cal.5th at p. 473 [trial court did not abuse its discretion in discharging 

juror who repeatedly “had violated the instruction not to discuss the case and 

could not be trusted to refrain from doing so in the future”].) We cannot 

make implied findings here to support the court’s decision. (See People v.

Henderson (2021) 68 Cal.App.5th 709, 735 [“because a reviewing court 

[applying the demonstrable reality test] must consider ‘the record of the 

reasons the trial court provides,’ reviewing courts cannot imply findings the 

trial court did not expressly make”].) The scant evidence on this record fails 

to establish a demonstrable reality that Juror No. 1 was unable to render a 

fair and impartial verdict based on the evidence presented at trial. (Beeler, 

supra, 9 Cal.4th at p. 975; Barton, supra, 56 Cal.App.5th at p. 508.) 

2. Prejudging the Facts and Refusing to Deliberate

A trial court properly may dismiss a juror based on the juror’s 

“unwillingness to engage in the deliberative process.” (People v. Cleveland

(2001) 25 Cal.4th 466, 485 (Cleveland); see also People v. Lomax (2010) 

49 Cal.4th 530, 589 [“A refusal to deliberate is misconduct.”].) “A juror who 

expresses a fixed conclusion at the start of deliberations and rebuffs attempts 

to engage him or her in the discussion of other points of view raised by other 

jurors has refused to deliberate, and properly may be discharged.” (People v. 

Alexander (2010) 49 Cal.4th 846, 926.) On the other hand, “[t]he 

circumstance that a juror does not deliberate well or relies upon faulty logic 

or analysis does not constitute a refusal to deliberate and is not a ground for 

discharge. Similarly, the circumstance that a juror disagrees with the 

14 Instead, the trial court thanked Juror No. 1 for her “honesty” in 

acknowledging she had conducted one experiment, without ever obtaining 

pertinent information on what that experiment entailed. 
31

majority of the jury as to what the evidence shows, or how the law should be 

applied to the facts, or the manner in which deliberations should be 

conducted does not constitute a refusal to deliberate and is not a ground for 

discharge.” (Cleveland, at p. 485.) 

“ ‘The inquiry [into possible discharge of a juror] should focus upon the 

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

(Barnwell, supra, 41 Cal.4th at p. 1054, italics added.) But here, the trial 

court expressly relied on the opinions and beliefs of the jurors without 

making its own findings of fact based on Juror No. 1’s alleged conduct. The 

trial court summarily concluded that the jurors “all felt that Juror No. 1 was 

predisposed and essentially did not participate in the jury deliberation 

process,” and that “the jury was almost unanimous . . . that her mind was 

made up before the commencement of deliberations.” As our Supreme Court 

has cautioned, “a trial court should be wary of relying on the opinions of 

jurors, rather than on its own consideration of objective facts.” (Allen, supra, 

53 Cal.4th at p. 75.) “The court cannot substitute the opinions of jurors for 

its own findings of fact” regarding a juror’s alleged misconduct. (Ibid.) 

Moreover, the record does not support the conclusion that Juror No. 1 

prejudged the case or refused to participate in deliberations. Substantial 

evidence in the record instead establishes that Juror No. 1 merely disagreed 

with other jurors about the weight of the evidence and the outcome of the 

case. The allegation that Juror No. 1’s “mind was set when she walked in” 

was only made when the jury had reached an impasse, with all in agreement 

except Juror No. 1. One juror complained that Juror No. 1 had “kind of had a 

negative attitude when we first started,” and another stated that she was 

“just very firm in her belief, but [had] no other concerns other than that.” 

Only two jurors, numbers 9 and 11, accused Juror No. 1 of not participating 
32

in jury deliberations. Juror No. 11 provided no explanation to justify that 

belief, and Juror No. 9, when pressed, acknowledged that Juror No. 1 was 

participating, just “not . . . a lot,” and further acknowledged Juror No. 1 

would respond to her questions, but without “really any discussion.” 

None of these statements is sufficient to support the court’s decision to 

discharge Juror No. 1. “The evidence regarding Juror No. [1’s] manner of 

deliberating does not state a proper ground for her discharge.” (People v. 

Armstrong (2016) 1 Cal.5th 432, 453.) Even assuming Juror No. 1 had firm 

beliefs, an unwillingness “to engage in further discussion, by itself, does not 

show as a demonstrable reality that she was failing to deliberate. It is not 

uncommon, or grounds for discharge, ‘for a juror (or jurors) in a trial to come 

to a conclusion about the strength of a prosecution’s case early in the 

deliberative process and then refuse to change his or her mind despite the 

persuasive powers of the remaining jurors.’ ” (Armstrong, at p. 453; see 

Engelman, supra, 28 Cal.4th at p. 446 [“[t]he 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”].) Juror No. 1 deliberated with the jury for nearly two days. 

As the Cleveland court recognized, “[a] juror who has participated in 

deliberations for a reasonable period of time may not be discharged for 

refusing to deliberate, simply because the juror expresses the belief that 

further discussion will not alter his or her views.” (Cleveland, supra, 

25 Cal.4th at p. 485.) It is apparent some jurors were frustrated by Juror 

No. 1’s limited feedback in response to their questions, but our Supreme 

Court has held that grounds to discharge a juror do not exist because the 

juror “relies upon faulty logic or analysis” (Cleveland, at p. 485), or because 

the juror does not “deliberate well or skillfully” (Engelman, at p. 446). 
33

“Simply because the other jurors were not satisfied with her opinion and the 

quality of her reasoning does not support a finding that she was refusing to 

deliberate.” (Barton, supra, 56 Cal.App.5th at pp. 512-513.) In sum, the 

record here does not establish to a demonstrable reality that Juror No. 1 had 

prejudged the case or was refusing to continue deliberating.

3. The Error Requires Reversal

We have concluded that, applying the heightened “demonstrable 

reality” standard, the record does not support the trial court’s decision to 

discharge Juror No. 1. We further conclude the error requires reversal.

We acknowledge that this is not a situation where a verdict was 

reached immediately after a juror was discharged and an alternate was 

sworn in. (See Bowers, supra, 87 Cal.App.4th at p. 736 [observing that “after 

less than one day of deliberation the new jury returned verdicts of guilty”]; 

Barton, supra, 56 Cal.App.5th at p. 516 [defendant was convicted within 

hours after juror was erroneously discharged for failing to deliberate and the 

alternate juror joined the jury].) After the replacement juror was sworn in, 

the jury deliberated anew and reached a verdict after approximately two and 

a half days of deliberations. Nonetheless, it is apparent from the record—

including the foreperson’s note, the reported impasse, and the jurors’ 

responses to the court’s inquiries—that the jurors were already in agreement 

with the exception of Juror No. 1. Removing Juror No. 1 when her lone 

dissenting opinion was preventing a verdict, without establishing that she 

was actually unable to perform her duties, constitutes prejudicial error and 

warrants reversal. (Bowers, at pp. 734-736 [discharge of holdout juror who 

participated in jury discussions “to some extent” was error requiring reversal 

under People v. Watson (1956) 46 Cal.2d 818, 836]; see also Allen, supra, 

53 Cal.4th at p. 65 [analyzing erroneous discharge of juror under section 1089 
34

as state law error, “obviat[ing] the need to decide whether [the juror’s] 

removal also violated defendants’ constitutional rights”].) The record here 

establishes that “had [Juror No. 1] remained on the jury, it is reasonably 

probable the case would have ended in a mistrial, a more favorable result for 

[Artale] than conviction.” (Barton, at p. 516.) Because the court’s erroneous 

discharge of Juror No. 1 was prejudicial, we reverse the judgment. (Id. at

pp. 511-512 [erroneous discharge of holdout juror for allegedly failing to 

deliberate warrants reversal].)

II.

Substantial Evidence Supports the Murder Conviction

Artale claims insufficient evidence supports his conviction for second 

degree murder because the prosecution failed to prove that Artale did not act 

in self-defense. We disagree.

“ ‘On appeal we review the whole record in the light most favorable to 

the judgment to determine whether it discloses substantial evidence—that is, 

evidence that is reasonable, credible, and of solid value—from which a 

reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt.’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).) As a 

reviewing court, we “presume in support of the judgment the existence of 

every fact the jury could reasonably have deduced from the evidence,” and we 

do not reweigh evidence or reevaluate a witness’s credibility. (People v. 

Zamudio (2008) 43 Cal.4th 327, 357.) Reversal is not warranted unless it 

appears “ ‘that upon no hypothesis whatever is there sufficient substantial 

evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 

331.) “ ‘Substantial evidence includes circumstantial evidence and any 

reasonable inferences drawn from that evidence.’ ” (People v. Brooks (2017) 

3 Cal.5th 1, 57.)
35

Second degree murder is “the unlawful killing of a human being with 

malice aforethought but without the additional elements, such as willfulness, 

premeditation, and deliberation, that would support a conviction of first 

degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) “Malice may 

be either express (as when a defendant manifests a deliberate intention to 

take away the life of a fellow creature) or implied.” (Cravens, supra,

53 Cal.4th at p. 507.) “ ‘Malice is implied when the killing is proximately 

caused by “ ‘an act, the natural consequences of which are dangerous to life, 

which act was deliberately performed by a person who knows that his 

conduct endangers the life of another and who acts with conscious disregard 

for life.’ ” ’ ” (People v. Smith (2018) 4 Cal.5th 1134, 1165.) 

There are two types of self-defense under California law: “perfect” selfdefense and “imperfect” self-defense. (People v. Randle (2005) 35 Cal.4th 987, 

994 (Randle), overruled on other grounds in People v. Chun (2009) 45 Cal.4th 

1172, 1198-1199.) “For perfect self-defense, one must actually and

reasonably believe in the necessity of defending oneself from imminent 

danger of death or great bodily injury.” (Randle, at p. 994.) “Imperfect selfdefense is the killing of another human being under the actual but 

unreasonable belief that the killer was in imminent danger of death or great 

bodily injury.” (People v. Booker (2011) 51 Cal.4th 141, 182, italics added.) 

“A killing committed in perfect self-defense is neither murder nor 

manslaughter; it is justifiable homicide.” (Randle, at p. 994.) “Imperfect selfdefense is not a complete defense to a killing, but negates the malice element 

and reduces the offense to voluntary manslaughter. [Citations.] ‘The 

subjective elements of [perfect] self-defense and imperfect self-defense are 

identical. Under each theory, the [defendant] must actually believe in the 

need to defend . . . against imminent peril to life or great bodily injury.’ ” 
36

(People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 744; accord, People v. 

Elmore (2014) 59 Cal.4th 121, 133-134.) The prosecution has the burden to 

prove beyond a reasonable doubt that the defendant did not act in selfdefense. (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168.) However, it 

is up to the jury to decide whether self-defense is established. (People v. 

Vasquez (2006) 136 Cal.App.4th 1176, 1179 [“It was for the jury sitting as the 

trier of fact to decide whether appellant actually feared serious injury or 

death.”].)

There is sufficient evidence to support the jury’s conclusion that Artale 

killed with malice. The jury reasonably could credit the testimony that 

Artale was angry with Prado after the two of them got into a fight at 

Annette’s house. Artale said “ ‘Fuck this shit,’ ” and pulled away quickly in 

his truck. He drove home, went inside to retrieve a gun, then waited for 

Prado to arrive. Artale sprung out from the bushes as Prado was puncturing 

a tire on Artale’s vehicle. Artale assumed a shooter’s stance, aimed directly 

at Prado, and fired at him as Prado was trying to run away. This evidence 

supports the reasonable inference that Artale intentionally shot Prado, either 

with an intent to kill or with conscious disregard for life. (See People v.

Smith (2005) 37 Cal.4th 733, 742 [“the act of purposefully firing a lethal 

weapon at another human being at close range, without legal excuse, 

generally gives rise to an inference that the shooter acted with express 

malice” and intended to kill]; People v. Lashley (1991) 1 Cal.App.4th 938, 

945 [“[t]he very act of firing a .22-caliber rifle toward the victim at a range 

and in a manner that could have inflicted a mortal wound had the bullet been 

on target is sufficient to support an inference of intent to kill”]; see also 

People v. Boatman (2013) 221 Cal.App.4th 1253, 1263 [“The jury could have 

easily concluded that pointing a loaded gun at someone and pulling the 
37

hammer back is an intentional act, the natural consequences of which are 

dangerous to human life, and that defendant deliberately did so with 

knowledge of such danger and with conscious disregard for [the victim’s] 

life”].) 

Artale does not deny that he shot Prado. Instead, he claims he shot 

Prado in self-defense: he was afraid Prado was going to attack him, he felt he 

“was out of options,” and he only fired when he thought Prado “was coming 

right at [him].”15 He highlights the victim’s “extensive history of mental 

illness, drug addiction, and violence,” reargues the inferences that can be 

drawn from the experts’ testimony, and contends the single eyewitness’s 

testimony was not reliable and he “could not[] speak to what was in [Artale’s] 

mind at the moment of the shooting.”16 But the jury was not required to 

accept Artale’s version of events or draw inferences in his favor. “ ‘If the 

circumstances reasonably justify the trier of fact’s findings, reversal of the 

judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding.’ ” (People v. Westerfield

(2019) 6 Cal.5th 632, 713.) And the testimony of a single witness is sufficient 

to sustain a jury’s verdict, “[e]ven when there is a significant amount of 

15 Artale does not specify which theory of self-defense he is relying on in 

his briefing. His opening brief appears to be based on perfect self-defense, 

and he only makes an argument about imperfect self-defense in his reply. 

Despite the arguable forfeiture, and because there is some overlap between 

the two, we exercise our discretion to address both self-defense theories. 

16 Artale points out that the prosecution’s experts could not definitively 

say whether Prado was facing Artale or his back was turned, and contends 

that Jael’s testimony was subject to dispute or interpretation as there were 

conflicts regarding how close he was to the men, how much he could have 

seen, and inconsistencies in his statements. He also argues that Prado, not 

Artale, was enraged. 
38

countervailing evidence” (Barnwell, supra, 41 Cal.4th at p. 1052), as long as 

the testimony is not “physically impossible or inherently improbable” (People 

v. Elliott (2012) 53 Cal.4th 535, 585). In the present case, the jury reasonably 

could credit the eyewitness’s testimony that Artale shot Prado in the back as 

he was running away. 

The jury was presented with sufficient evidence, which it could 

reasonably credit, showing Artale did not act in self-defense. For perfect selfdefense, Artale must have actually and reasonably believed that he was in 

imminent danger of death or great bodily injury. (Randle, supra, 35 Cal.4th 

at p. 994.) Similarly, imperfect self-defense can only be established if Artale 

“actually believe[d] in the need to defend himself against imminent peril to 

life or great bodily injury.” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 

1262.) Artale’s self-serving testimony that he was afraid and “out of options” 

is not dispositive. (In re Christian S. (1994) 7 Cal.4th 768, 783 [“[W]hether 

the defendant actually held the required belief is to be determined by the 

trier of fact based on all the relevant facts. It is not required to accept the 

defendant’s bare assertion of such a fear.”].) The jury heard evidence that 

Artale was upset with Prado over the failed move. After driving home and 

retrieving his gun, Artale initially aimed his weapon at Prado while in his 

driveway and told him to “[g]et out of here.” Prado backed up and left the 

driveway at that point, but Artale followed him. Artale admitted he followed 

Prado, and then shot him after witnessing Prado puncturing his truck tire. 

An eyewitness testified that Prado “pop[ped] out on the sidewalk” and “went 

into a shooter’s stance” and then shot Prado in the back while he was running 
39

away.17 The eyewitness further testified he never saw Prado attempt to use 

his knife on Artale. Artale did not tell the police that he was afraid of Prado 

because of his mental health issues or history of violence, as he contended at 

trial. Instead, he tried to minimize their relationship and lied to the police 

about his own drug use. Even though he claimed he was afraid because 

Prado was following him as he drove off after their argument, he never called 

911 or informed his family of any purported risk. Based on this record, the 

jury could conclude that Artale’s testimony lacked credibility and that he shot 

Prado because he was angry—not because he actually believed he was in 

imminent danger of death or serious bodily injury. (People v. Nguyen (2015) 

61 Cal.4th 1015, 1045 (Nguyen) [“ ‘[S]elf-defense is not available when a 

person does not act out of fear alone, but out of fear and a desire to harm the 

attacker.’ ”].)18 Even assuming Artale actually believed he was in imminent 

danger, the jury could conclude he used more force than reasonably necessary 

under the circumstances. (See People v. Hardin (2000) 85 Cal.App.4th 625, 

630 [self-defense is not available where defendant exceeds the amount of 

force necessary in view of the nature of the attack].) In addition to the 

eyewitness account, the forensic evidence was consistent with the 

prosecution’s theory that Artale shot Prado in the back as Prado tried to run 

17 Although Artale contends there were disputes as to what the witness 

“could or could not have seen,” the court arranged for the jurors to visit the 

crime scene and see for themselves where the eyewitness testified he was 

standing when he observed the shooting. 

18 In Nguyen, our Supreme Court cited the following standard with 

approval: “ ‘The party killing is not precluded from feeling anger or other 

emotions save and except fear; however, those other emotions cannot be 

causal factors in his decision to use deadly force. If they are, the homicide 

cannot be justified on a theory of self-defense.’ ” (Nguyen, supra, 61 Cal.4th 

at p. 1045.)
40

away. The medical examiner opined that the bullet grazed the top of Prado’s 

shoulder, going “from the back towards the front of the body,” and then 

entered Prado’s head near his right ear and exited through Prado’s forehead. 

Although Artale’s expert offered an alternative theory, the expert 

acknowledged that the wound path was consistent with the prosecution’s 

theory that Prado had turned to run away when Artale shot him. When 

faced with the divergent accounts of what happened during the shooting, the 

jury could reasonably reject Artale’s claim that he acted out of fear. We do 

not reweigh the evidence or resolve issues of credibility on appeal. 

In sum, there was substantial evidence to negate both perfect and 

imperfect self-defense. The jury reasonably could conclude that no 

reasonable person would have believed that he was in imminent danger of 

death or great bodily injury, and that Artale was not acting out of actual but 

unreasonable fear. Reviewing the record in the light most favorable to the 

judgment, we conclude substantial evidence, including physical evidence and 

eyewitness testimony, supports Artale’s conviction for second degree murder. 

Because we conclude sufficient evidence supports Artale’s conviction, there is 

no double jeopardy bar to retrial of the case (People v. Hernandez (2003) 

30 Cal.4th 1, 6), and it is unnecessary for us to consider Artale’s remaining 

claims on appeal.
41

DISPOSITION

The judgment is reversed. The double jeopardy clauses of the 

California and federal Constitutions do not bar retrial of the case. 

GUERRERO, J.

WE CONCUR:

HALLER, Acting P. J.

O’ROURKE, J.