Filed 3/9/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SAMUEL SHANKS et al.,

 Plaintiffs and Respondents,

v.

DEPARTMENT OF 

TRANSPORTATION,

 Defendant and Appellant.

2d Civ. B268459

(Super. Ct. No. 56-2012-00423044-

CU-PO-VTA)

(Ventura County)

Gary Lynn Shanks died in a head-on collision with 

another motorcycle on a state highway. In the ensuing wrongful 

death action, a jury determined that the People of the State of 

California (State) and the operator of the other motorcycle were 

at fault. The jury found the State liable for a dangerous 

condition on the highway and awarded Shanks’s family a total of 

$12,690,000 in damages. After just 90 minutes of deliberation, 

however, Juror No. 2 reported that Juror No. 7 was not 

deliberating. The trial court confirmed this by questioning that 

juror and a second juror who had “raised concerns” about Juror 

No. 7. The court thereafter excused Juror No. 7 and seated an
2

alternate. It made no inquiry of the accused juror or of any of the 

remaining jurors, including the foreperson. 

We conclude the record does not show as a 

“demonstrable reality” that Juror No. 7 failed to deliberate or was 

otherwise unable to perform her duty. (People v. Cleveland 

(2001) 25 Cal.4th 466, 474-475 (Cleveland); Boeken v. Philip 

Morris Inc. (2005) 127 Cal.App.4th 1640, 1686 (Boeken).) The

trial court consequently abused its discretion by discharging her. 

This error was prejudicial in that the jury’s apportionment of 

liability between the State and the other defendant was by a

nine-to-three vote, and Juror No. 7 had expressed her inclination 

to vote for the State. (People v. Hamilton (1963) 60 Cal.2d 105, 

128 (Hamilton), overruled on other grounds in People v. Morse

(1964) 60 Cal.2d 631, 648-649, and disapproved on other grounds 

in People v. Daniels (1991) 52 Cal.3d 815, 865-866.) Accordingly, 

we remand the matter to the trial court for a retrial of the 

apportionment issue. In all other respects, we affirm. 

FACTS AND PROCEDURAL HISTORY

State Highway 33 is a two-lane, north-south road, 

with a posted speed limit of 55 miles per hour. The accident

involving Shanks and the other motorcyclist, Orlando Castellon, 

occurred on a sharp, blind curve. The State had installed a 

warning sign for northbound motorists informing them to reduce 

speed to 25 miles per hour to safely negotiate the curve, but there 

was no such sign for southbound motorists. As a result, 

Castellon, who was traveling southbound, failed to reduce his 

speed and lost control of his motorcycle as he rounded the curve. 

He crossed over the center line and struck Shanks head-on. 

Shanks died at the scene. 
3

Shanks is survived by his wife, Patricia, an adult son, 

Samuel, and two minor children. His wife and adult son

(collectively “respondents”) filed this wrongful death action 

individually and on behalf of the minor children. 

After presenting his closing argument, respondents’ 

counsel, Arash Homampour, moved to discharge Juror No. 7 for 

sleeping as he argued. The State’s counsel, Timothy Day, did not 

believe the juror was sleeping. Day thought that “[Juror No. 7] 

looked annoyed and frustrated at the arguments being made by 

[respondents’] counsel, and she rolled her eyes, and she went like 

this a few times, closing her eyes with her hands on her 

eyebrows.” 

Homampour’s co-counsel, Farzad Yassini, also told 

the trial court that Juror No. 7’s eyes were closed during 

respondents’ opening and rebuttal arguments and that “[i]t 

looked to [him] like she was sleeping.” In addition, the court 

reporter sent the trial judge a note via the “realtime” system 

stating that the juror was sleeping. 

The trial court, which had an obstructed view of the 

juror, could not make a finding that Juror No. 7 was actually 

sleeping, as opposed to listening to the argument with her eyes 

closed. Consequently, the court declined to discharge the juror. 

The jury deliberated for about 90 minutes before 

being excused for the day. The following day Juror No. 2 called 

the trial court to inform it that one of the other jurors was not 

adequately deliberating. After discussing the issue with the 

parties, the court determined there was a sufficient basis to 

inquire into Juror No. 2’s complaint about the other juror. Before 

making its inquiry, the court stated that it planned on asking 

questions similar to those set forth in Cleveland, supra,
4

25 Cal.4th 466, and then specifically outlined the “leading” 

questions it planned to ask. The State’s counsel said he thought 

the court should delay the inquiry to allow for more deliberations 

but did not object to the questions or suggest different ones. 

Prior to questioning Juror No. 2, the trial court told 

the juror that it was “absolutely critical” that “[w]e can’t know 

how any jurors are voting.” The court explained to the juror that 

it did not want her to disclose “which way you are leaning” or 

“how any other jurors are leaning.” The court stated, “I’m going 

to ask you a lot of leading questions, yes-or-no questions to try 

and steer clear of you telling me anything about what you or 

other members of the jury think about the case.” 

In response to the trial court’s questions, Juror No. 2 

identified Juror No. 7 as the juror who had “expressed a fixed 

conclusion [about the outcome of the case] at the beginning of 

deliberations.” When the court asked whether Juror No. 7 had 

listened to the views of other jurors, Juror No. 2 responded, “Can 

I say not well?” The court inquired, “And by ‘not well,’ do you 

mean in terms of her giving feedback?” The juror said, “Yes. 

Just very adamant.” The juror also identified Juror No. 1 as 

another juror who had “raised concerns” about Juror No. 7. 

After conferring with counsel, the trial court asked 

Juror No. 2 if it was her opinion that Juror No. 7 had prejudged 

the case “at the outset of jury deliberations.” The juror 

responded, “Yes.” 

Respondents’ counsel requested that the trial court 

bring in Juror No. 1. The court asked if the “defense [was] 

opposed,” and the State’s counsel responded “No,” although he 

thought it would be “better” to bring in the foreperson to “tell us 

what his or her understanding of the interactions are.” The court 
5

indicated it may do that, but decided to “speak with Juror No. 1 

at this time.” 

The trial court asked Juror No. 1 if “there [is] a 

member of the jury who made up his or her mind at the very 

beginning of deliberations.” Juror No. 1 responded, “Yes.” He 

told the court that the juror’s opinion had been stated as soon as 

deliberations began, and that he believed that “this juror had 

prejudged the case.” Juror No. 1 identified the juror as Juror 

No. 7. 

After Juror No. 1 left the courtroom, the trial court 

asked the parties whether they were requesting that the court 

“engage in any additional investigation.” Respondents’ counsel 

said “[n]ot from plaintiffs” and requested that the court “excuse 

Juror 7 and replace her with an alternate.” The State’s counsel 

responded: “We believe that we should be speaking with the 

foreperson to understand what the overall jury feeling is as the 

person in charge of the panel.” 

The trial court granted the request to discharge Juror 

No. 7 without conducting any additional inquiry. The court 

stated: “I do note for the record, less than a week ago, the 

California Supreme Court decided on August 24th, People versus 

Williams [(2015) 61 Cal.4th 1244], which is a case that addressed 

juror misconduct for sleeping during trial, and it raised my 

concerns in isolation. At the time, I didn’t think it rose to the 

level of good cause, but combined with the comments of . . . Juror 

No. 2, and . . . Juror No. 1, I think the Court now has good cause 

and needs to discharge Juror No. 7. It all dove-tails together. 

You know, she was not paying attention during plaintiffs’ closing. 

The jurors don’t know that we had a concern about that. These 

two jurors have no way of knowing that we, the Court, counsel 
6

was concerned about whether Juror No. 7 was paying attention. 

And right out of the [chute], they have a concern with Juror No. 7 

paying attention and participating in jury [deliberations]. I just 

don’t think that’s a coincidence. I just don’t. I think . . . we have 

crossed the threshold where now there is good cause to discharge 

Juror No. 7. I think it would be error and abuse of discretion for 

the Court to not do so.” 

As for conducting a further investigation, the trial 

court noted: “I [have] read the cases. I asked the very limited 

questions I think were appropriate. I’ve given my reasons for not 

opening up Pandora’s box and marching every juror in here, 

including the foreperson. Again, the case law tells me to be as 

limited as I can and, at the same time, do enough of an 

investigation to resolve the matter, and the Court believes that 

it’s done so.” The court further stated: “And for the benefit of 

any higher court, you know, I would hope a higher court would be 

mindful of the fact that, sure, we could march in every other 

juror, including the foreperson and conduct an autopsy on this 

case and, you know, mistry it, and interfere with jury 

deliberations in a way that I do not think would comport with 

justice.” 

The trial court replaced Juror No. 7 with an alternate

and instructed the jury to begin its deliberations anew. The jury 

reached a verdict in favor of respondents that same day. It 

unanimously found that the State’s highway was in a dangerous 

condition at the time of the accident, that the State was on notice 

of the dangerous condition, and that the dangerous condition was 

a substantial factor in causing harm to respondents. The jury 

unanimously awarded Patricia Shanks total damages of $6 

million. The $8.1 million damage award to the children was by 
7

an eleven-to-one vote. The jury unanimously found that 

Castellon was negligent, and by a nine-to-three vote allocated 90 

percent of the fault to the State and 10 percent to Castellon. The 

verdict against the State totaled $12,690,000. 

The State moved for a new trial. It submitted a 

declaration from Juror No. 7 in which she stated she was not 

sleeping during respondents’ closing argument. She declared: 

“I had my eyes closed and was listening to Mr. Homampour’s 

closing argument. I closed my eyes briefly because I was not 

feeling well. I listened to all statements by Mr. Homampour 

while my eyes were closed, and I never was asleep. I listened to 

the entirety of the closing argument as well as the entirety of the 

closing argument for the State. I also listened to all evidence 

presented during the case.” 

Juror No. 7 also said her alleged unwillingness to 

deliberate was “not true.” She stated: “I had an opinion going 

into deliberations, which was that the [S]tate was not liable, but 

had not made up my mind. I never expressed an unwillingness to 

deliberate, discuss or consider the evidence of the case.” 

Juror No. 7 noted that after the jurors had retired for 

deliberations, they had taken a preliminary vote: “3 for [the 

State], 1-2 undecided, and 6-7 for the plaintiffs.” Juror Nos. 1 

and 2 voted against the State, while Juror No. 7 voted for the 

State. During the course of the trial, Juror No. 7 discovered that 

Juror Nos. 1 and 2 “were carpooling to the trial every day, and 

had become very friendly.” Juror No. 7 was “appalled to think 

that a juror could get another juror dismissed because they had 

opposing views.” 

The trial court denied the State’s new trial motion. It 

found that the discharge of Juror No. 7 was proper and that the 
8

State did not meet its burden of showing that Juror Nos. 1 and 2 

were biased against Juror No. 7. The State appeals. 

DISCUSSION 

A. Standard of Review

The California Constitution guarantees the right to a 

jury trial in both civil and criminal cases. (Salisbury v. County of 

Orange (2005) 131 Cal.App.4th 756, 764.) Pursuant to article I, 

section 16 of the California Constitution, trial by jury is “‘an 

inviolate right,’” “‘a basic and fundamental part of our system of 

jurisprudence. . . . As such, it should be zealously guarded by the 

courts . . . .” (Cohill v. Nationwide Auto Service (1993) 16 

Cal.App.4th 696, 699; see Glage v. Hawes Firearms Co. (1990) 

226 Cal.App.3d 314, 322 [“civil litigants are no less entitled to a 

fair trial than criminal defendants”].) Consequently, the 

standards governing excusal of jurors during trial are common to 

both criminal and civil cases. (Code Civ. Proc., § 233; Pen. Code 

§ 10891; see Cleveland, supra, 25 Cal.4th at pp. 474-475; Boeken, 

supra, 127 Cal.App.4th at p. 1686.) 

 

1 Code of Civil Procedure section 233 states: “If, before the 

jury has returned its verdict to the court, a juror becomes sick or, 

upon other good cause shown to the court, is found to be unable to 

perform his or her duty, the court may order the juror to be 

discharged. If any alternate jurors have been selected as 

provided by law, one of them shall then be designated by the 

court to take the place of the juror so discharged.” Penal Code 

section 1089 similarly provides: “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 
9

A trial court has authority to discharge a juror upon 

good cause shown to the court that the juror is unable to perform 

his or her duty. (Code Civ. Proc., § 233; Pen. Code § 1089.) An 

appellate court reviews such a determination for abuse of 

discretion. (People v. Marshall (1996) 13 Cal.4th 799, 843; 

Boeken, supra, 127 Cal.App.4th at p. 1686.) This discretion, 

however, is not unfettered. (People v. Roberts (1992) 2 Cal.4th 

271, 325.) Although the trial court's ruling will be upheld if there 

is substantial evidence to support it, the juror's inability to 

perform as a juror must “‘“appear in the record as a demonstrable 

reality.”’ [Citation.]” (Marshall, at p. 843; Boeken, at p. 1686.) 

The “demonstrable reality” standard requires a 

higher level of scrutiny than the typical “substantial evidence” 

review. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) This 

standard protects the parties’ fundamental rights to due process 

and to a fair trial by an unbiased jury. (Ibid.) To affirm the 

discharge of a juror, the appellate court reviews the entire record 

to determine if the trial court actually relied on evidence that 

supported a conclusion that bias was established. (Id. at pp. 

1052-1053.) The reviewing panel does not reweigh the evidence,

but “must be confident that the trial court's conclusion is 

manifestly supported by evidence on which the court actually 

relied.” (Id. at p. 1053.) 

B. Alleged Failure to Object to Juror No. 7’s Discharge

Respondents contend the State failed to object to the 

discharge of Juror No. 7 and, as a consequence, failed to preserve 

the issue for appeal. (See People v. Ashmus (1991) 54 Cal.3d 932, 

987, fn. 16.) We disagree. 

 

same rules and regulations as though the alternate juror had 

been selected as one of the original jurors.” 
10

The State advised the trial court that it opposed the 

court’s decision to interview only Juror Nos. 1 and 2 in deciding 

whether to discharge Juror No. 7. After the court finished 

questioning Juror No. 1, the court asked counsel if it should 

“engage in any additional investigation.” The State’s counsel 

restated his belief that “we should be speaking with the 

foreperson to understand what the overall jury feeling is as the 

person in charge of the panel.” The court declined to interview 

the foreperson, but the State, by requesting an additional 

investigation, preserved the issue for review. 

Moreover, it is well established that a party need not 

lodge a formal objection when doing so would be futile. (See 

People v. Arias (1996) 13 Cal.4th 92, 159; People v. Sandoval

(2001) 87 Cal.App.4th 1425, 1433, fn. 1; Burch v. Gombos (2000) 

82 Cal.App.4th 352, 357.) When the trial court refused the 

State’s request to interview the foreperson, it made clear that it 

believed “we have crossed the threshold where now there is good 

cause to discharge Juror No. 7,” and that “it would be error and 

abuse of discretion for the Court to not do so.” At that point, any 

further objection by the State would have been futile. The court 

was satisfied that it had conducted “enough of an investigation to 

resolve the matter” and that any further investigation would only 

serve to “open[] up Pandora’s box” and “interfere with jury 

deliberations in a way that . . . would [not] comport with justice.” 

C. Improper Discharge of Juror No. 7

The State asserts the trial court abused its discretion 

by discharging Juror No. 7 for refusing to deliberate and for 

prejudging the case. We agree the record lacks sufficient 

evidence to show as a demonstrable reality that Juror No. 7 was 

unable to perform her duty as a juror. Under the standards 
11

discussed and applied in Cleveland, supra, 25 Cal.4th 466, we 

conclude the court did not conduct an adequate inquiry into the 

allegations against Juror No. 7. As a result, the court’s decision 

to discharge her constitutes an abuse of discretion. 

1. Applicable Decisional Law

In Cleveland, supra, 25 Cal.4th 466, the jury’s 

foreperson sent a note to the trial court on the second day of 

deliberations. The note requested “‘an alternate to replace one 

juror. One juror does not agree with the charge and does not 

show a willingness to apply the law. One juror will not abide [by] 

the facts and apply the law.’” (Id. at p. 470.) The trial court 

asked all the jurors if anyone was not following instructions. Ten 

jurors said “yes.” After questioning each juror individually, the 

court determined the holdout juror “‘is not functionally 

deliberating’” and seated an alternate in the juror’s place. (Id. at 

p. 473.) The Supreme Court affirmed the Court of Appeal’s 

reversal of the conviction because the discharge of the holdout 

juror violated the defendant’s constitutional right to a unanimous 

jury verdict. (Ibid.) 

In so ruling, the Supreme Court observed, “[A] court 

may not dismiss a juror during deliberations because that juror 

harbors doubts about the sufficiency of the prosecution’s 

evidence. [O]ften the reasons for a request by a juror to be 

discharged, or the basis for an allegation that a juror refuses or is 

unable to deliberate, initially will be unclear. [A] court must take 

care in inquiring into the circumstances that give rise to a 

request . . . lest the sanctity of jury deliberations too readily be 

undermined. But we . . . adhere to established California law 

authorizing a trial court, if put on notice that a juror is not 

participating in deliberations, to conduct ‘whatever inquiry is 
12

reasonably necessary to determine’ whether such grounds exist 

[citation] and to discharge the juror if it appears as a 

‘demonstrable reality’ that the juror is unable or unwilling to 

deliberate. [Citations.]” (Cleveland, supra, 25 Cal.4th at pp. 483-

484.) “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.” (Id. at p. 485.) 

“If some inquiry is called for, the trial court must 

take care not to conduct an investigation that is too cursory.” 

(People v. Fuiava (2012) 53 Cal.4th 622, 710.) Unlike in 

Cleveland, the trial court in this case did not interview all 12 

jurors. Its inquiry was limited to interviewing Juror No. 2, the 

juror who first complained about Juror No. 7, and then Juror No. 

1, whom Juror No. 2 had identified as having “raised concerns” 

about Juror No. 7. The court did not interview Juror No. 7, the 

foreperson or any of the other jurors. This type of limited 

inquiry, particularly after just 90 minutes of deliberation, is 

inconsistent with the inquiries routinely performed by trial 

courts under similar circumstances. In most instances, the court 

will interview all of the jurors before deciding whether a juror is 

unable or unwilling to deliberate. At a minimum, it must 

interview more than the complaining jurors. (People v. Barber 

(2002) 102 Cal.App.4th 145, 150-152 (Barber).) It also should 

interview the alleged problem juror to obtain his or her response 

to the complaints. (People v. Compton (1971) 6 Cal.3d 55, 60 

(Compton).) 

In Barber, all the jurors but one voted to find the 

defendant guilty. (Barber, supra, 102 Cal.App.4th at p. 151.) An 
13

issue arose as to whether the holdout juror was refusing to 

deliberate. Of the 11 jurors who voted guilty, six informed the 

court that the holdout juror was deliberating in good faith. 

Instead of calling those jurors to testify, the trial court only 

questioned the five who claimed the holdout juror was not 

deliberating. (Ibid.) We determined this was reversible error, 

reasoning that to assess whether the juror had engaged in 

misconduct, the trial court also had to hear testimony from the 

six jurors who believed the holdout juror was deliberating in good 

faith. (Id. at pp. 153-154.) We concluded, “The hearing was 

fundamentally unfair because the court restricted the evidence 

primarily to witnesses supporting the prosecution’s position. 

Proceedings that exclude relevant defense witnesses are 

constitutionally inadequate. [Citation.]” (Id. at p. 151; see People 

v. Feagin (1995) 34 Cal.App.4th 1427, 1436-1437 [court 

determined misconduct issue after questioning all jurors].)

In People v. Bowers (2001) 87 Cal.App.4th 722, 726, 

the foreperson notified the trial court of his concern that Juror 

No. 4 had prejudged the case before deliberating. Again, the 

court questioned all 12 jurors. Although some jurors stated Juror 

No. 4 had “made up his mind early on” and had “‘clammed up’” at 

times, the jurors conceded that Juror No. 4 engaged in some of 

the discussions and made his opinion known. (Id. at p. 732.) The 

Court of Appeal reversed the trial court’s decision to discharge 

Juror No. 4, explaining, “While there was some evidence Juror 

No. 4 was inattentive at times during the deliberations and did 

not participate in the deliberations as fully as others, the record 

shows this conduct was a manifestation, effectively 

communicated to the other jurors, that he did not agree with 

their evaluation of the evidence -- specifically their credibility 
14

determinations. There appears no demonstrable reality that 

Juror No. 4 was unable to perform his function and [we conclude] 

he did not engage in serious and willful misconduct.” (Id. at 

p. 730.) 

In Compton, supra, 6 Cal.3d at p. 60, the trial court 

improperly removed a juror without questioning him first. The 

juror reportedly had told a third person that he disliked being on 

the jury because it was hard to keep an open mind. (Id. at p. 59.) 

The court excused the juror based on this ambiguous remark, 

electing not to “question the person most likely to know [its] 

meaning, [the juror] himself.” (Id. at p. 60.) The Supreme Court 

determined that because the evidence did not resolve the 

ambiguity in the juror’s remark, the juror’s inability to serve was 

not shown as a demonstrable reality. The trial court was not 

entitled to resolve the ambiguity by presuming the worst of the 

juror. (Ibid.; People v. Franklin (1976) 56 Cal.App.3d 18, 25-26; 

see People v. Burgener (1986) 41 Cal.3d 505, 520-521 [trial court 

abused its discretion by questioning only the jury foreperson 

regarding the possible misconduct of another juror, and by not 

questioning the juror at issue], overruled on another ground in 

People v. Reyes (1998) 19 Cal.4th 743, 753.) 

In People v. Allen and Johnson (2011) 53 Cal.4th 60

(Allen), two jurors informed the trial court that another juror, 

Juror No. 11, had prejudged the case while evidence was still 

being presented. (Id. at p. 65.) Juror No. 11 denied having made 

up his mind and voted “‘undecided’” during a preliminary vote on 

the fourth day of deliberations. (Id. at p. 66.) After a lengthy 

investigation, in which the trial court questioned each juror 

individually, the court concluded Juror No. 11 had prejudged the 

case and was relying on evidence not presented at the trial. The 
15

court discharged him and seated an alternate juror. The 

reconstituted jury found the defendants guilty and later returned 

death verdicts. (Id. at p. 69.)

The Supreme Court reversed. (Allen, supra, 53 

Cal.4th at p. 79.) It determined it is not improper for a juror to 

hold a preliminary opinion that a party’s case is weak, “so long as 

his or her mind remains open to a fair consideration of the 

evidence, instructions, and shared opinions expressed during 

deliberations.” (Id. at p. 73.) The record did not demonstrate 

that Juror No. 11 “refused to listen to all of the evidence, began 

deliberations with a closed mind, or declined to deliberate.” 

(Ibid.) “The reality that a juror may hold an opinion at the outset 

of deliberations is . . . reflective of human nature.” (Id. at p. 75.) 

Though Juror No. 11 appeared to hold a strong opinion about the 

prosecution’s case, he participated in deliberations. Expressing 

opinions forcefully is not evidence of prejudgment or of a failure 

to deliberate. (Id. at p. 74.) 

Finally, Boeken, supra, 127 Cal.App.4th 1640, is an 

example of a civil case in which the trial court conducted an 

adequate inquiry before discharging a juror. The foreperson had 

sent a note to the court indicating that Juror No. 5 was not 

participating in the discussion and was “‘sit[ting] away from the 

table and read[ing] her [B]ible instead of contributing to the 

group conversation.’” (Id. at p. 1686.) In response to the note, 

the court reread to the jury the instruction stating that all jurors 

should participate in all deliberations. (Ibid.) After receiving 

another complaint from the foreperson, the court interviewed 

Juror No. 5 in chambers. Juror No. 5 denied that she had been 

reading her Bible during deliberations and also denied that she 
16

sat away from the table, failed to listen or slept during 

deliberations. (Ibid.)

When the trial court received another complaint from 

the foreperson, it questioned each juror individually in chambers. 

From these interviews, the court found that Juror No. 5 had 

“separated herself physically from the other jurors, did not pay 

attention to the deliberations and, instead, slept or read a novel, 

the Bible, or both, throughout the two days . . . she was a member 

of the deliberating jury.” (Boeken, supra, 127 Cal.App.4th at 

p. 1688.) Based on these findings, the Court of Appeal concluded 

that there was a demonstrable reality that Juror No. 5 had 

refused or was unable to deliberate and that the trial court had 

not abused its discretion in discharging her. (Ibid.) 

2. Analysis

Here, the trial court’s inquiry was unlike the one in 

Boeken and more like the one in Barber. The court only elicited 

evidence from two jurors, who coincidentally sat next to each 

other during trial, who carpooled together and who “had become 

very friendly.” They reported that Juror No. 7 “adamantly”

expressed her opinion at the outset of deliberations. This, in and 

of itself, is not evidence of prejudgment or a failure to deliberate. 

Indeed, when the court asked Juror No. 2 about how Juror No. 7 

was listening to the views of other jurors, she responded, “Can I 

say not well?” Decisional law makes clear that deliberating “not 

well” is an inadequate basis for removal of a juror for failure to 

deliberate. (Cleveland, supra, 25 Cal.4th at p. 485 [“that a juror 

does not deliberate well or relies upon faulty logic or analysis . . . 

is not a ground for discharge”].) This answer alone should have 

prompted the court to conduct a further inquiry before removing 

Juror No. 7 from the panel. 
17

Moreover, the record reflects that Juror Nos. 1 and 2 

did not agree with Juror No. 7’s initial opinion that the State was 

not liable. By only considering their views of Juror No. 7’s 

alleged unwillingness to deliberate, the trial court “obtained an 

incomplete version of Juror No. [7]’s participation from those 

most likely to harbor resentment against [her].” (Barber, supra, 

102 Cal.App.4th at p. 152.) In other words, the court’s “findings 

were derived from a stacked evidentiary deck.” (Id. at p. 153.) 

We are not unsympathetic to the quandary a trial 

judge faces when confronted with complaints of juror misconduct. 

He or she must investigate the possibility of misconduct but not 

overstep and invade the sanctity of the jury’s deliberations. But

jurors may mistakenly conclude that a juror’s disagreement with 

the majority constitutes an inability or refusal to deliberate. The 

Supreme Court has noted that “the [trial] 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 [citation], but 

laypersons may not understand this. [¶] It is not always easy for 

a juror to articulate the exact basis for disagreement after a 

complicated trial, nor is it necessary that a juror do so. As we 

have stated, it is not required that jurors deliberate well or 

skillfully.” (People v. Engelman (2002) 28 Cal.4th 436, 446

(Engelman).)

Accordingly, it is the trial court’s duty to make a 

sufficient inquiry before discharging a juror during deliberations. 

(See People v. Fuiava, supra, 53 Cal.4th at p. 710.) Based on our 

review of the caselaw, we conclude that this type of inquiry was 

not performed here. At a minimum, the court should have 

interviewed Juror No. 7, the foreperson and at least some of the 
18

jurors who had not complained about Juror No. 7. (See Barber, 

supra, 102 Cal.App.4th at pp. 150-152; Compton, supra, 6 Cal.3d 

at p. 60.) Only after hearing those views would the court be able 

to make an informed decision regarding whether the complaints 

from Juror Nos. 1 and 2 were founded on facts rather than on 

speculation. As stated in Engelman, “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 . . . , 

mistakenly may believe that those individuals who steadfastly 

disagree with them are refusing to deliberate or are intentionally 

disregarding the law.” (Engelman, supra, 28 Cal.4th at p. 446.) 

This is particularly true where, as here, the complaint about the 

juror was lodged after only 90 minutes of deliberation. 

We recognize that the trial court also cited Juror No. 

7’s alleged inattentiveness during respondents’ closing argument 

as a basis for determining she was refusing or unwilling to 

deliberate. The court was unable to determine if she was actually 

sleeping during the closing. If it had asked her to explain, she 

would have said that she was never asleep, that she had listened 

to all of the evidence and argument, and that she had closed her 

eyes briefly “because she was not feeling well.” But the court, 

without any inquiry, assumed that by closing her eyes, Juror No. 

7 had already made up her mind about the case. As previously 

discussed, the court may not assume the worst about a juror, 

especially without giving that juror an opportunity to explain 

herself. (Compton, supra, 6 Cal.3d at p. 60.) The speculation 

about Juror No. 7 sleeping was not good cause for removal, either 
19

in isolation or combined with the other two jurors’ accusations 

about her engagement in the deliberations. (See People v. 

Bowers, supra, 87 Cal.App.4th at p. 731 [“A juror must not be 

discharged for sleeping unless there is convincing proof the juror 

actually slept during trial”].) 

As our Supreme Court has observed, “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.” (People v. Fuiava, 

supra, 53 Cal.4th at p. 710.) We conclude the trial court in this 

case did not successfully navigate this course. In the absence of a 

manifest showing of misconduct, the court abused its discretion 

not only in discharging Juror No. 7, but also in failing to grant a 

new trial on the issue of allocation of fault, as discussed below. 

3. Prejudice

Unlike in a criminal case, the parties were not 

entitled to a unanimous jury verdict. At least nine jurors had to 

vote for one side or the other with respect to each question 

presented on the special verdict form. (Glage v. Hawes Firearms 

Co., supra, 226 Cal.App.3d at pp. 322-323.) The only issue on the 

form that was not decided by a unanimous or eleven-to-one vote 

was the comparative fault allocation. The jury found by a nineto-three vote that the State was 90 percent at fault and that 

Castellon was 10 percent at fault for the accident that killed 

Shanks. Juror No. 7 stated in her declaration in support of the 

State’s motion for new trial that, before her dismissal from the 

jury, she was “inclined toward [the State],” and that her initial 

vote during deliberations was in the State’s favor. 
20

A party shows harm where a “qualified and acting 

juror who, by some act or remark made during the trial, has 

given the impression that he favors one side or the other” is 

improperly discharged. (Hamilton, supra, 60 Cal.2d at p. 128.) 

In Hamilton, a capital case, a juror was improperly dismissed 

after asking a question that indicated she was considering a life 

sentence. (Ibid.) “To dismiss her without proper, or any, cause 

was tantamount to ‘loading’ the jury with those who might favor 

the death penalty. Such, obviously, was prejudicial to appellant.” 

(Ibid; see People v. Delamora (1996) 48 Cal.App.4th 1850, 1856 

[prejudice shown where jury deliberated for three days with two 

or possibly three holdouts, and after two jurors were improperly 

dismissed, jury reached a verdict in three hours].)

Here, Juror No. 7’s inclination to vote in the State’s 

favor renders her dismissal from the jury prejudicial. (Hamilton, 

supra, 60 Cal.2d at p. 128; People v. Delamora, supra, 48 

Cal.App.4th at p. 1856.) Respondents maintain that even if her 

dismissal was improper and prejudicial, the State is only entitled

to a retrial on the issue of apportionment of fault. We agree. It is 

undisputed that the only aspect of the jury’s verdict that could 

have been impacted by Juror No. 7’s vote in favor of the State 

was the apportionment issue. (See, e.g., Schelbauer v. Butler 

Manufacturing Co. (1984) 35 Cal.3d 442, 459 [modifying new trial 

order on all issues to limit retrial to apportionment where the 

only claimed defect in the verdict related to apportionment].) We 

therefore remand the matter to the trial court for a retrial on 

apportionment of fault. 

DISPOSITION

The judgment is reversed in part and the matter 

remanded to the trial court for retrial on the issue of 
21

apportionment of fault between the State and Castellon. In all 

other respects, the judgment is affirmed. The State shall recover 

its costs on appeal. 

CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
22

Kevin G. DeNoce, Judge

Superior Court County of Ventura

______________________________

Jeanne E. Scherer, Chief Counsel, Jerald M. 

Montoya, Deputy Chief Counsel, and Mark Berkebile for 

Defendant and Appellant. 

The Homampour Law Firm and Arash Homampour;

The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and 

Respondents.