Filed 6/13/24 P. v. Rosa les CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v.
JOSE LUIS GUTIERREZ ROSALES, Defendant and Appellant. F086448 (Super. Ct. No. BF189911A)



### OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Matthew Alger , under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General,
Louis M. Vasquez, Lewis A. Martinez and Hannah Janigian Chavez, Deputy Attorneys
General , for Plaintiff a nd Respondent.

- ooOoo

-2

. INTRODUCTION Defendant Jose Luis Gutierrez Rosales was arrested for bludgeoning his coworker to death with a metal pipe in 2022 and charged with first degree murder with a sentence enhancement for personal use of a deadly or dangerous weapon. (Pen. Code, §§ 187, subd. (a)/189, subd. (a), 12022, subd. (b)(1).) 1 The jury rejected the prosecution’s theory that the murder was willful, deliberate and premeditated, but convicted defendant of the
lesser included offense of second degree murder and found the weapon enhancement allegation true. The trial court sentenced defendant to 15 years to life with an additional one year for the weapon enhancement. On appeal, defendant’s sole claim is that the trial court abused its discretio n when it discharged Juror No. 4 during deliberations, violating his state and federal rights, and entitling him to reversal of his conviction. The People dispute there was any error.
Given that Juror No. 4’s failure to deliberate does not “ ‘ appear in th e record as a demonstrable reality, ’ ” we find the trial court abused its discretion when it found good cause to discharge her under section 1089. ( People v. Armstrong (2016) 1 Cal.5th 432, 450 ( Armstrong ).) Because the record indicates that Juror No. 4 w as persuaded by
defendant’s claim of self

- defense, the error is prejudicial. 2 ( Armstrong, supra , at p. 454.) Therefore, we reverse the judgment and remand for further proceedings. ( I b id. [no double jeopardy bar to retrial].)

1 All further statutory references are to the Penal Code

. 2 Because we find the trial court erred under state law and the error is prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836 ( Watson ), we do not reach defendant’s claim of constitutional error . (

People v. Allen and Johnson (2011) 53 Cal.4th 60, 65 ( Allen and Johnson ) ; accord, People v. Wilson (2008) 44 Cal.4th 758, 8 14 ( Wilson ) .)3

. FACTUAL SUMMARY
I. Prosecut ion Evidence At the time of the murder, defendant had worked for several years for the irrigation division of a farming company near Lamont. On the morning of April 18, 2022, defendant was assigned to clean up and organize the yard where irrigation pipes were stored, along with Eusebio M. and the victim, Hector “Teto” Castaneda. 3 Eusebio testified he had his back to defendant and Teto when he heard defendant scream, “ ‘ Why did you mess with my family? ’ ” Eusebio turned around and saw Teto on the ground, face up and not moving, and defendant standing in front of him “ ‘ assaulting ’ ” him with a steel pipe. 4 Eusebio saw defendant hit Teto several times in the face with a forward chopping motion before defendant tossed the pipe and drove off in his ve hicle. Eusebio did not hear anything prior to defendant screaming at Teto and hitting him. Eusebio called his son, Daniel M., who was also on the irrigation team, but was working in a field under one

- quarter of a mile away, and told him that defendant hit Teto. Daniel testified that just prior to receiving his father’s call, he looked over at the yard. He saw defendant, Teto, and Eusebio, and he saw something fall. He then saw someone he could not identify delivering blows down toward the g round in an up

- and

- down chopping
motion. After Eusebio called him , he drove to the yard and saw defendant leaving in a
white vehicle. When he arrived at the yard, Eusebio looked frightened and Teto was on the ground. Crime scene photos showed a bloody p ost near Teto’s body, which Eusebio identified as the weapon.

3 Because the victim and defendant’s supervisor share th e same first name, we refer to the victim by his nickname.
4 Evidence showed there were six metal posts on the trailer used for irrigation pipes, to aid in keeping the pipes stable. At the end of the trailer, the two pipes on each side were attached by chains but the one in the center, which was the murder weapon, was fully removable.4

.

Responding paramedics determined Teto was deceased. The forensic pathologist
testified that Teto died from blunt force trauma to the head and neck. He was struck at least seven times, four tim es in the back of the head and three times in the face; and the lacerations he suffered were caused by being struck with a hard, linear object. The vehicle defendant drove off in was found abandoned approximately one week later, and defendant was arrested 10 days after the murder at a residence following an anonymous phone call to authorities. Prior to booking, defendant was transported to the hospital because he had self

- inflicted cuts to his neck and wrist. After defendant was returned to the jail, prio r to the booking, he told a nurse that he cut himself with a knife three days earlier because “he felt bad for what he did to the man.” When asked if he was still suicidal, he said, “ ‘ Not at this time. ’ ”
II. Defense Evidence
Defendant testified that he h ad worked for the farming company laying pipe in fields for approximately three years. He had known Eusebio and Teto that entire time, and he and Teto also spent time together outside of work. Prior to the murder, there were no arguments, fights, or thre ats between the two, but he suspected his former girlfriend and Teto were having a relationship. However, he had never confronted Teto with his suspicions and he denied his coworkers teased him about his former girlfriend having sex with people at work. He would see his coworkers laughing and it made him angry, but he did not know why they were laughing. On the day of the murder, defendant was working with Teto and Eusebio in the yard. After their morning meal break, which they shared with three additio nal men, they were loading irrigation pipes onto the trailer. Teto bent down at one point and grabbed something. He approached defendant, who had turned away, with a broken section of pipe with a riser in hand. Teto poked the broken riser, which was sha rp at the end, in defendant’s chest and said, “ ‘ You’re gonna see now. ’ ” Defendant testified that this drew blood and left a mark on his chest that was visible in a photograph taken just prior to5

.

trial. 5 Teto then went to get on the tractor and said, “ ‘ I t’s worse. You’re gonna see

now. ’ ” Teto always carried a small, three

- inch knife and, fearing Teto was going to get the knife from the tractor, defendant pulled him back down, which caused him to stumble backward, fall, and hit the back of his head on th e irrigation pipes. Teto started to get back up. Defendant had the metal post from the trailer in his hand at the time and, in shock and fearing for his life, he struck Teto. He testified that when he hit Teto, he was not looking at Teto and was strikin g backward. Defendant testified it was a mistake, and he did not know how many times he hit Teto, but Teto was unconscious. While striking Teto, defendant said something to the effect of, “ ‘ So you won’t mess with my family. ’ ” He then threw the metal pole and drove

away. He testified he was afraid Teto would do something to his children and implied that Teto hung out with questionable people. He also testified that he did not have a plan when he drove away, but Teto was well

- known to their coworkers, and defendant was afraid their coworkers might do something to him. Eventually, defendant’s vehicle ran out of gas on the outskirts of Taft. Defendant testified he felt bad and sick, and he stayed out there for days. While out there, he cut his
neck and wri st with a small, plastic knife he had for work, staining his shirt with blood, and he “guess[ed] he did want to kill [him]self.” During his interview with detectives following his arrest, defendant did not tell
them that Teto attacked him or that he hit Teto while defending himself. He testified that he did not think they cared.
On cross

- examination, defendant admitted he killed Teto and fled for 10 days. He testified he cut himself on the day of the murder, and he lost a lot of blood, had a fever, and his head was hurting. He also testified his body would stiffen and he felt dead, and

5 Defendant did not know what happened to the riser Teto poked him with and it was not visible in the crime scene photographs.6

.

he laid down under the almond trees and walked along the highway, wanting to be seen. However, he did not flag anyone down.
Defend ant testified he killed Teto in self

- defense and then tried to kill himself, but he conceded he did not tell the police he acted in self

- defense or that Teto had a weapon. He admitted hitting Teto in the face approximately three times, but he denied hitti ng Teto
in the back of the head . He reiterated that Teto stumbled and hit the back of his head on the irrigation pipes.
III. Rebuttal Evidence The prosecutio n introduced defendant’s audio

- video recorded interrogation

statement. Defendant asked for water and food, and he said he had been to the hospital
for stitches and antibiotics but felt fine. Defendant said his estranged wife, Maria, “connected with” his supervisor, Hector P. , as well as Daniel , Teto , and Jose ; and he said they would make fun of him every day because “that man” was with his wife. He also said “that man” humiliated him and separated him from the crew, and he “wanted to take [his] own life.” During breaks, defendant’s coworkers would dial each other’s phones and his supervisor would p retend he was calling Maria. Defendant said that he sometimes saw Maria with his supervisor in a truck and that , “Everyone, the whole world knows, I didn’t need to ask.” Defendant referred to the victim as “the man from the accident” and said that day,
th e two of them were paired with Eusebio to pick up pipes. He felt strange, grabbed a metal pipe, and hit “the man” with his eyes closed. When defendant opened his eyes, Teto was on the ground and he left, not knowing if Teto was dead. He later admitted h e thought Teto was dead when he left. Asked why he hit Teto, defendant said Teto had been laughing at him and he was humiliated. Defendant also told detectives he did not intend to flee and was not hiding, but his phone died. He told detectives he would “answer here, like a man for what I have done.”7

. DISC U SSION
I. Error in Discharging Juror No. 4 for Failure to Deliberate
A

. Legal Principles “[R] emoval of a seated juror for failing to deliberate is a serious matter that implicates a defendant ’ s state and federal constitutional right to a unanimous decision by the jury. [Citation.] Although a trial judge has discretion to remove a juror for a failure to deliberate, the exercise of that discretion should be undertaken with great care. ” ( Armstron g

, supra , 1 Cal.5th at p. 454.) Under state law, “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 du ty , or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged ....” (§ 1089, italics added.) A trial court’s decision to discharge a juror under section 1089 is reviewed for abuse of discretion. ( Ar mstrong, supra , at
p. 450, citing People v. Cleveland (2001) 25 Cal.4th 466, 485

– 486 ( Cleveland ).) However, “ such review involves a ‘ heightened standard [that] more fully reflects an appellate court ’ s obligation to protect a defendant ’ s fundamental rights to due process and to a fair trial by an unbiased jur y ’ ( People v. Barnwell (2007) 41 Cal.4th 1038, 1052, ( Barnwell ); see Cleveland, supra , at p. 488 (conc. opn. of Werdegar, J.))

. Specifically, the juror ’ s ‘ inability to perform ’ his or her duty ‘ must app ear in the record as a
demonstrable reality. ’ (

People v. Compton (1971) 6 Cal.3d 55, 60; accord, People v.
Wilson (2008) 44 Cal.4th 758, 821; Barnwell, supra , at p. 1052

. )

“ Under the demonstrable reality standard, a reviewing court ’ s task is more ‘ than
si mply determining whether any substantial evidence in the record supports the trial

court ’ s decision. ’ ( People v. Lomax (2010) 49 Cal.4th 530, 589.) ‘ A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable
trier of fact could have relied in reaching the conclu sion in question. Once such evidence8

.

is found, the substantial evidence test is satisfied

.... [¶] The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the
court as trier of fact did rely on ev idence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under
the demonstrable real ity standard, however, the reviewing court must be confident that
the trial court ’ s conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just
the evidenc e itself, but also the record of reasons the court provides. ’ ( Barnwell, supra , 41 Cal.4th at pp. 1052

– 1053 , citation omitted .) ” ( Armstrong, supra , 1 Cal.5th at pp. 450

– 451; accord, People v. Perez (2018) 4 Cal.5th 421, 446; Allen and Johnson , supra , 53 Cal.4th at p. 71.) On review, “we afford deference to the trial court’s credibility determinations, ‘based, as they are, on firsthand observations unavailable to us on appeal.’” ( Armstrong,

supra , 1 Cal.5th at p. 451, quoting People v. Barnwell (2007) 41 Cal.4th 1038, 1053; accord, Allen and Johnson, supra , 53 Cal.4th at p. 75.) However, “under the demonstrable reality test, courts may not ‘“ presume the worst ” of a juror. ’” ( People v.
Henderson (2022) 78 Cal.App.5th 530, 563 ( Henderson ), quoting People v . Bowers (2001) 87 Cal.App.4th 722, 729 ( Bowers ).)9

.

B. Procedural History
1

. Jury Notes Preceding Discharge of Juror No. 4 6

a. First Note The jury began deliberating on May 3, 2023, at approximately 2:00 p.m. At approximately 3:20 p.m., the foreperson sent the following note on behalf of the jury: “More information on what constitutes 2nd degree murder? More clarification of ‘malice’? Under voluntary manslaughter, more explanation on ‘provocation.’” With the agreement of both counsel, the court responded at 4:00 p.m. by directing the jury to CALCRIM No. 520 in response to the first two questions and CALCRIM No. 570 in response to the third question.

b. Second Note At 4:17 p.m., the jury requested a transcript of defendant’s testimony. The court ordered readback of defendant’s testimony, which was completed at approximately
2:15 p.m. the next day.

c . Third Note Just over one hour after readback was completed, at 3:25 p.m. on the second day of deliberations, the jury sent a third note stating, “We are at an empasse [ sic ] on whether
this is a case of self defense or not self defense.” Over defense counsel’s objection, the court read CALCRIM No. 3551 to the jury, 7 and with the agreement of both counsel, the

6 During trial, Juror No. 4 gave the bailiff a note asking, “ ‘ Was the injury to the back of [the victim’s] head a cranial fracture or more of a flesh wound bruise? ’ ” The court addressed the note outside the presence of the other jurors. Juror No. 4 said sh e had not discussed her question with other jurors and was able to set it aside until all the evidence was presented. The People point to this note as evidence that “ it was clear from the start that Juror No. 4 would be unable to stay within the confines of the evidence presented at trial. ” However, the court did not rely on this note in discharging Juror No. 4 and we do not include it in our discussion.
7 T he court instructed, “ Sometimes juries that have had difficulty reaching a verdict are able to res ume deliberations and successfully reach a verdict. Please consider the following suggestions: [¶] Do not hesitate to reexamine your own views. Fair and effective jury deliberations require a f

rank and forthright exchange of views. [¶] Each of you mu st decide the case for yourself and form y our individual opinion after you have fully and completely10

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court informed the jury it ha d options, including further exhibit review or requesting readback of testimony, clarification of instructions, or further argument or comments
from counsel.
d

. Fourth Note At 4:20 p.m., the jury sent a note asking the following questions: “Define self
de fense from each attorney as it applies to this case? Is there any inventory list from the tractor that we can see? Is the knife used in the attempted suicide available? ([B]oth attorneys) speak to credibility of Defendant’s testimony on stand. Speak ab out conditions of police interview? (Fever, state of mind, badgering.) What happen s when any juror/s refuses to look at physical evidence and their mind is made up by bias and speculation and refuses to look at physical evidence and refuses to comprehend [] the process and instructions given by the judge?” The next morning, in response to the note, defense counsel and then the prosecutor offered their comments to the jury.

e . Fifth Note At 11:00 a.m. on the third day of deliberations, approximately 45 minutes after the comments by counsel, the jury sent a fifth note stating, “Juror will not look at evidence and won’t acknowledge the defendant [ ’ ] s physical actions caused the victim [ ’ ] s death. This person’s only response when reviewing e vidence is, ‘That’s your opinion.’ Only explanations are speculation , or asking for more evidence. Other jurors feel she is not

considered all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. B oth the People and the defendant are entitled to the individual judgment of each juror. [¶] It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective.

“ Let me know whether I can do anything to help you further, such as give additional instruction s or clarify instructions I have already given you. [¶] Please continue your deliberations at this time. If you wish to communicate with me further, please do so in writing using the form my bailiff has given you. ”11

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either competent , or she is deliberately trying to subvert [ the ] process. Also she is applying conspiracy to the case. Juror is not keeping an open mind.”

2

. Inquiry of Five Jurors

a . Foreperson Following receipt of the fifth note, the court began an inquiry, starting with Juror
No. 3, who was the foreperson. The foreperson identified Juror No. 4 as the juror of concern in the fifth note, and he related that when the jurors looked at the exhibits and testimony, Juror No. 4 would state, “ ‘ Well, that’s your opinion, ’ ” or “ ‘ [t]hat’s how you
see it. ’ ” Although Juror No. 4 initially based her view on defendant’s testi mony, which the foreperson acknowledged was appropriate, concerns arose when she started expressing views based on things not in evidence, such as asking why there was no inventory of items in the tractor or where the knife was that defendant stated he cut himself with. Jurors then circled back and started over by looking at police body cam footage. The foreperson stated that Juror No. 4 began counting the trucks in the video
and she “wanted to make the number of trucks on

- site relevant,” but she could no t explain why. The foreperson stated that the jurors discussed their perspective on the evidence and when it was Juror No. 4’s turn, she brought up “a lot of conspiracy and speculation. And ... the energy turned away from the evidence to really trying to e xplain to her the juror instruction and what we were there to do,” resulting in the fifth jury note. The foreperson reported that everyone was paying attention to the thoughts and ideas of others, but when asked about Juror No. 4 specifically, he said, “I can’t state whether she was paying attention. Her thought process takes a little longer. But she really stuck to one thing,” and “she would only comment when ... she was spoken to or asked her opinion.” He said that Juror No. 4 did not refuse to discuss her ideas or thoughts, but was unwilling or unable “to discuss the pros and cons to having an open mind.” Instead, she12

.

just repeated what she had said before, which the foreperson relayed caused frustration and prevented the jury from moving to the next i tem. When the trial court asked for examples of conspiracy theories or speculation on the part of Juror No. 4, the foreperson responded that Juror No. 4 thought “[t]he people at the job were covering up evidence. They moved the weapon stated by [defendant ] that [Teto] had. Basically tampering with the crime scene.” She also “speculated on the reason [defendant] stopped hitting [Teto]. When [the jury] took that in[to] consideration and ... talked about it, she just repeated over and over ... ‘ [h]e stopped wh en he saw the
blood. ’ [¶] And we couldn’t understand where she got that from. It wasn’t submitted into evidence that he stopped because he saw the blood.” The foreperson commented that jurors saw blood coming from the back of Teto’s head, but Juror No. 4 disagreed, saying that defendant did not see blood coming from the back of Teto’s head. Relevant to the
issue of self

- defense, the foreperson opined that if things happened the way Juror No. 4 believed they did, “the blood would [have been] very appare nt” when Teto went to get

up. Further, Juror No. 4 disagreed that defendant’s actions caused Teto’s death, she kept referring back to intent, and “[i]t took her quite a few minutes just to agree with the rest of the jurors that [Teto] was dead.” Regarding the statement in the note that other jurors thought Juror No. 4 was either incompetent or trying to deliberately subvert the process, the foreperson said the other jurors, including one of the quietest jurors who just focused on doing his job, drew
that c onclusion because they were frustrated. 8 That morning, the foreperson concentrated on keeping the other jurors quiet so that Juror No. 4 could express herself, but she fell back on “speculation” concerning defendant’s intent or feelings, or a conspiracy to hide

8 The trial court did not find that J uror No. 4 was either incompetent or trying to subvert the process , and we note the absence of any evidence in the record that would have supported such a finding

. As we shall discuss, this conclusion reached by Juror No. 4’s fellow jurors was driven by t heir frustration with her views and opinions about the evidence.13

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something. Juror No. 4 felt there should have been an inventory list and di d not accept that the police body cam footage showing the work site was the evidence they had to
consider. Regarding subversion of the process, the foreperson reported that one of the jurors requested he add that to the note, and that jurors felt Juror No . 4 was incompetent or had made up her mind she was going to vote not guilty and was trying to make the
evidence fit her view. Although the foreperson did not necessarily agree that Juror No. 4 was trying to subvert the process, the other jurors did and h e stated, “[T]hat’s a possibility from what I’ve heard, but I’m no professional. But I just think it’s the built

- in frustration that we cannot continue to process,” despite breaking things down to a minimum. “[I]t’s just a frustration. I think that’s mo re than anything. No one in there is a psychiatrist. They don’t know.” The court inquired whether Juror No. 4 had an open mind at the start of deliberations or had already made up her mind. The foreperson thought they were all openminded in the beginnin g, but Juror No. 4 focused exclusively on testimonial evidence and dismissed the coroner’s testimony as opinion. When Juror No. 4 would not agree on evidence that was “literal[ly]” in front of them, the foreperson began to suspect she had made up her mind when she walked in. The foreperson said all the jurors were trying to work and “if Juror [ No. 4] was able to express her reasons or point to anything that was in front of us, I think it would be a healthy conversation.” However, she continued to specula te.

b

. Juror No. 5 Based on the foreperson’s identification of three jurors with specific concerns, the court next questioned Juror No. 5, who was the quiet juror mentioned by the foreperson. Juror No. 5 believed that the issue was a matter of competenc e. He related that Juror
No. 4 did not seem to understand what was expected of them despite their best efforts to explain it, and her position remained unchanged from the beginning. He did not think she grasped any of the concepts or ideas, and when aske d for an example, he said they14

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were instructed not to speculate but she kept going back to the same things and did not seem to give things any thought. Juror No. 5 said Juror No. 4 “kept insisting that there was missing evidence,” she engaged in conspirac y theories about what happened and why, and she seemed unwilling “to look at the evidence and come to [a] ... conclusion based solely on the evidence.” Asked for examples of conspiracy theories, Juror No. 5
said Juror No. 4 thought the farming company was trying to hide something and had hidden or tampered with evidence. She also felt the police did not conduct defendant’s interrogation properly and were trying to get him to admit to something. Juror No. 5 related that Juror No. 4 did not participate in op enly discussing her thoughts and ideas, and she kept insisting evidence was missing and speculating about missing items. Juror No. 5 thought they all entered the jury room with open minds, but Juror No. 4 stopped participating within 15 minutes of deliber ations beginning, when she stated her opinion and did not move from it. Juror No. 5 said any attempt to persuade Juror No. 4 to have an open mind was met with the response that there was missing evidence and they did not have the whole story. Although Ju ror No. 5 said it seemed like they were making progress at times and Juror No. 4 was listening, she returned to the same speculative thoughts when asked for her opinion. Juror No. 5 did not think Juror No. 4 merely viewed the evidence differently than the y did because they tried repeatedly to convey their thoughts, feelings, and ideas, but it seemed to him that she did not pay attention and had her mind made up. However, Juror No. 4 never refused to speak to other jurors and never separated herself physic ally from other jurors; she conversed minimally and was calm; and Juror No. 5 said he could tell she tried to gather her thoughts before speaking. Like the foreperson, Juror No. 5 thought the other jurors were all in agreement concerning Juror No. 4.

c . Juror No. 9 Next, Juror No. 9 stated that he also thought Juror No. 4 was incompetent because she failed to give any reasons for her opinion, and when other jurors disagreed with her15

.

position on basic facts, she would respond, “ ‘ That is your opinion. ’ ” J uror No. 9 said
Juror No. 4 responded the same way even when they were discussing what a witness said in testimony following readback. Juror No. 4 had not moved from her position or been able to explain her position, and she kept asking for evidence they did not have and stating they could not figure things out without the missing evidence. Juror No. 9
believed Juror No. 4 had her mind made up at the very beginning of deliberations and was trying to make everything fit with her opinion rather than letting the evidence guide her opinion. Juror No. 4 participated in deliberations, but briefly and without explaining her reasoning. In Juror No. 9’s view, Juror No. 4 was not considering other opinions and did not weigh what other jurors had to say. Juror No. 9 reported that they started with the basic fact that Teto was dead, and it took them five minutes to get Juror No. 4 to agree to
that fact. She stated she could accept that as a fact with a death certificate. Jurors also
included as a fact that Teto was dead because of defendant’s actions. Juror No. 4 would not agree to that fact and kept referring to defendant’s intent and her belief that when defendant left the scene, he did not know Teto was dead. Juror No. 9 acknowledged it was fine for everyone to have different opinions, but Juror No. 4 was unable to agree on basic undisputed facts. She would simply respond “ ‘ that is your opinion ’ ” or veer off topic to unrelated missing evidence. Juror No. 4 wanted inventories of the tractor and the
field. W hen told they did not exist, she opined that people were not doing their job and seemed stuck on what they did not know.

d

. Juror No. 12 Juror No. 12 was responsible for the comment on the note that one juror was either incompetent or trying to subvert t he process. Juror No. 12 explained that Juror No. 4 was unable to understand the court’s rules and participate in deliberations because she could not agree on the basic undisputed facts such as Teto was dead. Juror No. 12 reported Juror No. 4 also specul ated that defendant had COVID

- 19 during his interrogation, and16

.

she stated that she knew how large

- scale farming operations worked and the farming company conspired to cover up Teto’s aggression toward defendant. By subverting the process, Juror No. 12 exp lained she meant that it seemed Juror No. 4 was stalling or unable to answer their questions, taking three or four minutes to answer a direct question. Asked if she could agree that Teto was dead, Juror No. 4 did not respond for five minutes
and when aske d for her response, said she was still thinking about it. In Juror No. 12’s opinion, from the outset, Juror No. 4 either did not have an open mind or was unwilling to participate in deliberations, and she kept talking about conspiracy theories or asking fo r evidence they did not have. Juror No. 4 did not think the police did a thorough investigation and were delinquent in failing to inventory everything at the scene. Juror No. 12 did not think Juror No. 4 was considering other points of view because she w ould respond to discussions by crossing her arms and shaking her head. Juror No. 4 also answered some questions, but not others. Rather than a difference of opinion, Juror No. 12 thought Juror No. 4 did not seem to have a good grasp on what was happening and did not seem to understand what was going on.

e . Juror No. 4 Finally, upon invitation by the court to comment first, Juror No. 4 opened by telling the court that she felt the other jurors’ comments were meant to intimidate and bully her into “surren der[ing her] individual judgment of the facts.” She said she and the other 11 jurors simply did not agree, but she had kept an open mind; viewed the evidence; listened to witness testimony and the attorneys’ arguments; and both listened to and participate d in deliberations. She also stated it was her duty to follow the court’s instructions and keep an open mind, she valued the other jurors’ views, and she asked other jurors for their individual views, but she felt her “point of view [was] being
crushed” b ecause it differed from the other jurors’ views, making her “frightened” and
“scared.” However, Juror No. 4 said she could still be fair to both sides and render a
verdict.17

.

Asked about allegations that she was speculating, Juror No. 4 said it was another juror who first stated that the three men who testified

— Eusebio, Daniel, and Hector P.

— were “[h]iding something.” Juror No. 4 stated that the court had instructed them they could accept or reject testimony in whole or in part, and she agreed with the firs t juror that Eusebio, Daniel, and Hector appeared to be hiding something. When the court questioned Juror No. 4 about whether she stated that defendant stopped when he saw blood, she said, “Yes. [¶] ... [¶] And dropped the pipe and went away.” Questioned about whether she was unwilling to accept the victim was dead, she said “I accept death with the death certificate. That was the most accurate. They were inquiring as to what would be the most accurate indication of death. Well, a death certificate, You r Honor.” Juror No. 4 denied saying that she knew how large

- scale farming companies work or that the company conspired to cover up Teto’s aggression toward defendant, responding, “And how would they operate a farm? I don’t know. I’ve never managed a
farm . Those are someone else’s words, Your Honor.” She also denied saying defendant
had COVID

- 19. She had instead said “he might have had COVID because he did mention in testimony that he had a fever [ and ] was not feeling well at all.” She felt the
sheriff ’s department could have interviewed defendant a day or two later since he had been to the hospital, had not eaten or had enough water, and was given antibiotics. Juror No. 4 denied saying people were covering up or tampering with evidence, but she had

sa id during deliberations, “At th at time, they did not know what objects would be used as
evidence.” Juror No. 4 denied her mind was made up at the beginning of deliberations and said she told one of the jurors who asked that she was open to changing her min d. She also denied that she refused to consider other jurors’ views, failed to engage in deliberations, or simply said, “ ‘ [T]hat’s your opinion. ’ ” Juror No. 4 said the word

“ ‘ opinion ’ ” was not part of her vocabulary, but questioned several times about whether18

.

the source of disagreement among jurors was merely a difference of opinion, she said, “Your Honor, I’m gonna go with the vocabulary you used in your statement, and I will say yes.” Juror No. 4 agreed she had questions about an inventory list of items in the tractor, if there was an example of the plastic knife defendant said he cut himself with,
and definitions of self

- defense by each attorney. However, she said she had, and continued to have, an open mind and if certain evidence was not ava ilable, then it was not available and they would go with the evidence presented. Juror No. 4 reiterated that she had not refused to speak to other jurors, and she was deliberating, had an open mind, and was judging the case based on the evidence presented and the arguments made.

3

. D ecision to D ischarge Juror No. 4 After hearing argument from both attorneys, the trial court made the decision to discharge Juror No. 4 for failing to deliberate, over defendant’s objection. The court found the foreperson an d Jurors Nos. 5, 9, and 12 more believable than Juror No. 4, but did not make more specific credibility or factual findings on the issue. The court stated that Juror No. 4 had “fixated on speculation or conjecture, as phrased, through conspiracy
theories on information that was not provided during the course of the evidence. It is also not information necessarily reasonably inferred from the evidence presented.” The court expressed concern over the reports that Juror No. 4 represented she could not make a decision in the case without the information she wanted or thought was missing. The court noted Juror No. 4’s reported desire for an inventory of the tractor, the knife defendant cut himself with, and her opinion that defendant stopped hitting the
victim when he saw blood. On the latter point, the court stated it “very well might be wrong,” but it could not remember any evidence that would support that belief. Juror
No. 4’s opinion on that point caused the court “great concern,” in addition to Juror
No. 4’s reported view that she knew how to manage large

- scale farming operations and believed the business had conspired to cover up Teto’s aggression toward defendant, that others hid or tampered with evidence, that there were improprieties in the police19

.

int erview, and that defendant may have had COVID

- 19. However, the court then qualified its statement, saying, “A number of these examples that the Court just put on the record very well could qualify as reasonable inferences derived from the evidence present ed, as Juror [ No. 4] indicated to the Court when the Court had an opportunity to ask her questions individually, but certainly not all of them would fall under that exception.”
The court reiterated its concern with Juror No. 4’s statement that without cert ain information, she could not make a decision and said, “It is the reliance on information not presented in evidence nor information reasonably derived from evidence that has been presented that results in an inability to render an opinion that gives the Court great pause because it leads to neither side receiving a fair trial based only on the evidence presented in this courtroom and the law that’s been provided to the jurors. [¶] While it is apparent to the Court that jurors definitely have differing o pinions, not just about, arguably, evidence presented but also about opinions insofar as jurors participating in deliberations or not participating [in] deliberations, it is equally apparent to the Court that, to a certain extent, that there was an agreeme nt on Juror [ No. 4], at least with some, not engaging in deliberations, refusing to consider other views of jurors and making up her mind at the beginning of deliberations.” In concluding that it was going to discharge Juror No. 4 under section 1089, the trial court found the facts distinguishable from those in Cleveland and stated Juror No. 4 “has in essence refused to deliberate based on her reliance on information not prese nted during the course of evidence nor derived through reasonable inferences from evidence and her assertion that, without this information, she cannot make a decision.” The court
also noted that it found the assertions that Juror No. 4 “has had a fixed c onclusion at the beginning of deliberations, she has refused to consider other points of view, she has refused to speak to other jurors” more believable. When the court informed Juror No. 4 it20

.

was discharging her, the court told her it found she “refused indirectly to deliberate,” and
it found the other jurors questioned more credible. After the court seated an alternate juror, the jury deliberated approximately three hours before returning a verdict of guilty on the fourth day of deliberations.
C

. Analysis
1. Refusal to Deliberate “[P] roper grounds for removing a deliberating juror include refusal to deliberate. A refusal to deliberate consists of a juror ’ s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consi der other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The 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 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 s hould be conducted does not constitute a refusal to deliberate and is not a ground for discharge. 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

expr esses the belief that further discussion will not alter his or her views. ” ( Cleveland,

supra , 25 Cal.4th at p. 485.) In this case, there is no evidence that Juror No. 4 refused to listen to or speak with other jurors, separated herself physically from oth er jurors, or expressed a fixed opinion
from the outset. 9 The other jurors who were questioned reported she spoke less than

9 The record reflects that Juror No. 4 was persuaded early on b y defendant’s testimony, but holding a preliminary view that one party’s case is stronger or weaker, without more, falls short21

.

other jurors or did not speak unless she was spoken to or asked a question, but neither
circumstance constitutes a refusal to deli berate. As well, three of the four jurors questioned initially thought everyone entered the jury room with an open mind. The record reflects that later frustration with Juror No. 4 caused the foreperson to think she may have made up her mind from the beg inning, but he acknowledged there was “a lot of speculation” concerning Juror No. 4’s motives. Juror No. 9 stated he thought Juror No. 4 did not begin deliberations with an open mind and her mind was made up, but he did not offer any specific facts support ing that opinion. Similarly, Juror No. 12 stated Juror No. 4 did not have an open mind and did not participate in deliberations, but her description of events, too, does not include any specific facts indicating that Juror No. 4 had made up her mind befor e the jury began deliberations, and her description of events demonstrates that Juror No. 4 did participate
in discussion. What Jurors Nos. 9 and 12 instead described was broad frustration with Juror No. 4’s thought process, views, and unwillingness or in ability to support her own opinions with what they viewed as adequate reasoning. “[A] trial court should be wary of relying on the opinions of jurors, rather than on its own consideration of objective facts ” ( Allen and Johnson , supra , 53 Cal.4th at p. 75) and, in this case, the trial court did not find that Juror No. 4 failed to deliberate by refusing to listen or speak, or separating herself from other jurors. While frustration with

of evidencing misconduct by prejudgment. ( Allen and Johnson, supra , 53 Cal.4th at p. 73; see Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 784 [Misconduct occurred where juror stated, mid

- trial, “‘“I made up my mind already. I ’ m not going to listen to the rest of the stupid argument.”’” ].) As the court stated in Allen and Johnson , “T he reality that a juror may hold an opinion at the outset of deliberations is, as we have noted [citation] , reflective of human nature. It is certainly not unheard of that a foreperson may actually take a vote as deliberations begin to acquire an early sense of how jurors are leaning. We cannot reasonably expect a juror to enter deliberations as a tabula rasa , only allowed to form ideas as conversations continue. What we can, and do, require is that each juror maintain an open mind, consider all the evidence, and subject any preliminary opinion to rational and collegial scrutiny before coming to a final determination. ” (

Allen and Johnson, supra , at p. 7 5.)22

.

Juror No. 4’s thought processes and her apparent inability to convey her reasoning adequately to satisfy the other jurors is clear from the record, “i t is not required that jurors deliberate well or skillfully ” ( People v. Engelman (2002) 28 Cal.4th 436, 446, citing Cleveland, supra , 25 Cal.4th at p. 485), and her manner of deli berating is not grounds for discharge (

Armstrong, supra , 1 Cal.5th at p. 453).
In Armstrong , the California Supreme Court explained, “[A] juror may not be removed for failing to deliberate simply because he or she ‘ does not deliberate well or relies upon faulty logic or analysis. ’ [Citation.] Moreover, ... ‘ the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be
conducted

... is not a ground for discharge. ’” ( Armstrong, supra , 1 Cal.5th at p. 452, quoting and citing Cleveland, supra , 25 Cal.4th at p. 485.) “I t is [also] 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 persuasiv e powers of the remaining jurors. ’” ( Armstrong,

supra , at p. 453, quoting Bowers , supra , 87 Cal.App.4th at p. 734.) Many of the jurors’ complaints, as previously summarized, fall within the scope of what the California Supreme Court has expressly stated does “ not constitute a failure to deliberate.” ( Armstrong, supra , at p. 452.) We reiterate that “[i] n deciding whether to discharge a juror for misconduct, a court should focus on its own consideration of a juror ’ s conduct

. The court cannot substitute t he opinions of jurors for its own findings of fact. ” ( Allen
and Johnson , supra , 53 Cal.4th at p. 75.)

2. Reli ance on Speculation , Conjecture, and Conspiracy Theories The trial court specifically concluded that Juror No. 4’s reliance on speculation, conspiracy theories, and conjecture constituted a failure to deliberate. We find no evidence that Juror No. 4 imported conspiracy theories or rank speculation into her decisionmaking. The foreperson reported that Juror No. 4’s “thought proce ss takes a little23

.

longer,” and Juror No. 5 reported that “[y]ou can tell she[] tries to gather her thoughts before she says anything.” However, the record reflects that her viewpoint was informed by defendant’s testimony, inferences she drew from the evid ence, her assessment of witness credibility, and defense counsel’s arguments. While Juror No. 4’s viewpoint was at odds with that of the other jurors, holding a minority viewpoint does not render her thoughts or conclusions unreasonable.
One issue raised by jurors that drew the trial court’s attention was Juror No. 4’s view that defendant stopped hitting Teto and walked away after he saw blood. Despite equivocating that it “very well might be wrong,” the court nevertheless cited it as “[o]ne example wher e there wa s no evidence presented ....” The record, however, contradicts the court and the other jurors on this point. During defendant’s testimony, which was read back to the jury, the following exchange occurred:

“[PROSECUTOR : ] What happened to [Teto] a fter you hit him about three times, you said? “[DEFENDANT : ] He

— he remained in that area, unconscious. I really didn’t see. Because I just noticed there was a lot of blood. And I just started walking this way. “[PROSECUTOR : ] At that point, what did y ou do with the metal tube that was in your hand? “[DEFENDANT : ] I threw it from here to there like this.” When Juror No. 4 was questioned, she acknowledged she said to other jurors, “ ‘ He stopped when he saw blood, ’ ” and she added to the court, “And dropped the pipe and went away.” Defendant’s express testimony clearly supports Juror No. 4’s view that defendant threw the pipe and walked away when

— because

—

he noticed Teto was bleeding. That only Juror No. 4 found defendant’s testimony persuasive is im material. Her viewpoint was supported by evidence, and there is no factual support for a finding24

.

that she committed misconduct in this regard by forming an opinion based on facts not in
evidence.
The court also mentioned Juror No. 4’s view that the farmi ng company was conspiring to cover up Teto’s aggression toward defendant, evidence was hidden or tampered with, the police did not interview defendant properly, and defendant may have
had COVID

- 19. As previously stated, the court commented, “A number of t hese examples that the Court just put on the record very well could qualify as reasonable inferences derived from the evidence presented, as Juror [ No. 4] indicated to the Court when the Court had an opportunity to ask her questions individually, but certa inly not all of them would fall under that exception.” As such, it is not clear from the record which, if any, of these concerns formed the basis for the trial court’s conclusion that Juror No. 4 failed to engage in deliberations, and “ ‘ [u] nder the demons trable reality standard,

... the reviewing court must be confident that the trial court ’ s conclusion is mani f estly supported by evidence on which the court actually relied. ’ ” ( Armstrong, supra , 1 Cal.5th at p. 451.) Nevertheless, these concerns bear mentio n because the record does not indicate that Juror
No. 4’s views were untethered from the evidence.

“ ‘ A jury ’ s verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters ’ ” ( Wilson , supra , 44 Cal.4th at p. 829, quoting People v.
Leonard (2007) 40 Cal.4th 1370, 1414) , and inferences drawn must be reasonable in view of the record ( People v. Ware (2022) 14 Cal.5th 151, 167). “‘ “ [A] reasonable inference
... ‘ may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. ’ ”’” ( Id. at p. 167.) Misconduct occurs, for example when a juror “ conduct [s] an improper experiment, visit s[s] the crime scene by h [ er ] self,
or consult [s] a dictionary .” ( Wilson, supra , at p. 831.) Defendant testified that he killed Teto, whom he knew to carry a knife, in self

defense after Teto confronted him by poking him with a broken riser and threatening that

“ ‘ [defendant was ] gonna see now. ’ ” The broken riser was nei ther in evidence nor visible25

.

in any of the crime scene photos or body cam video, and during closing argument, defense counsel argued :

“Obviously, there’s a question about the weapon, which is this riser, which is normally connected to those larger pipes, but you’ve seen how there’s a seam and those can break off or be taken off. That was used against my client in this case. Well, question being, okay, if that weapon was used, then where is it? Right? “Now, he didn’t try to make something up to say

— to p oint out something that was there and say, yes, that was what was used against me. He honestly told you what was used against him and honestly told you that he doesn't know what happened to it. “What do we know about the scene, though, after this event? When Deputy Monsibais shows up, there are already quite a few people, some of whom are arriving around [Teto] or standing next to him, milling about here. Trucks in the area. We have a lot of people in this area. “Again, nobody necessarily knows what a ll of the evidence is going to be, what all is related to this event, and things can be moved unintentionally, intentionally. We just don’t know what happened to that item. And there is no apparent sort of thorough search around that area to find out, yo u know, what was in that area or if there’s anything of evidentiary value that can help out. [¶] We also do know that this object here was moved from some other nearby location. Unclear where. So there was movement of items at the scene after this happ ened. It was moved by a firefighter and paramedic. This PVC pipe here was moved to that location too. These are some

— looks like bags from the paramedics from the ambulance. [¶] So there were movement of things around. Again, not knowing what would ha ve evidentiary value, those things were being moved around.” During further argument after receipt of the fourth jury note, defense counsel again addressed the missing riser, stating, “[Defendant] described in detail what it was, one of
these risers. And he doesn’t know where it is. We don’t have to establish where it is. We don’t have the burden of proving anything. He wasn’t present after this occurred. So we don’t know where it is. But he didn’t make something up just to fit it to what was found

a t the scene.”26

.

There was no evidence of a conspiracy to tamper with crime scene evidence by the farming company or the police, but there was more than one possible explanation for the missing riser. One obvious possibility is that defendant lied about Teto confronting him with a broken riser. If persuaded by defendant’s testimony on this point, another reasonable possibility is that the riser was just kicked away or otherwise moved because its relevance to Teto’s death was not apparent to anyone on the sce ne that day. Juror
No. 4 appeared to be persuaded by defendant’s testimony and self

- defense claim, as her thoughts and opinions centered around those issues. Neither faulty logic nor the inability to explain herself well to her fellow jurors was grounds to discharge Juror No. 4, however ( Armstrong, supra , 1 Cal.5th at p. 452; Cleveland, supra , 25 Cal.4th at p. 485), and we may not presume the worst of her ( Henderson , supra , 78 Cal.App.5th at p. 563). Juror No. 4 denied saying that she knew how large

- scale farming operations worked and that the farming company was conspiring to hide evidence, 10 but she did not believe Eusebio, Daniel, and Hector were telling the entire truth. In explaining herself, she said that it was another juror who first sa id the three men were hiding something. She pointed out that the court told jurors they could accept all, some, or none of testimony as true, and it appeared to her the witnesses were hiding something. Viewed in the foregoing context, Juror No. 4’s “‘ ina bility to perform ’

... her duty ‘[does not] appear in the record as a demonstrable reality. ’” ( Armstrong, supra , 1 Cal.5th at p. 450.) Regarding defendant possibly having COVID

- 19 and Juror No. 4’s opinion that law enforcement should have waited to interrog ate defendant, defendant was arrested

10 As previously summarized, t he trial court found Juror No. 4 less credible than the foreperson and Juror s Nos. 5, 9, and 12, but it made no specific findings. Thus, we cannot tell from the record whether this is one of the issues upon which the cour t based its ruling or to what extent it found Juror No. 4’s explanation credible or uncredible. ( Armstrong, supra , 1 Cal.5th at pp. 450

– 451 [“ ‘ T he demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing t hat the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. ’ ”])27

.

10 days after Teto was killed. He did not tell detectives he acted in self

- defense because Teto attacked him and when he testified, he explained he did not think that they would care or that anything was going to “sav e [him] from jail.” He also said he had lost a lot of blood, did not feel well, had a fever, and had just received antibiotics at the hospital. During his interrogation, he asked for water, said he had not eaten, and described the antibiotics as “strong pills.” Jurors were free to believe or disbelieve defendant’s testimony that he was ill when interrogated and, if they believed he was, to decide what effect, if any, that might have had on his interrogation statements, including his failure to claim self

- defense. The record indicates Juror No. 4 was persuaded by this testimony and she was free to view his description of his symptoms through the lens of her own personal experience with illnesses, including COVID

- 19, among other possibilities. As our high court explained in
Allen and Johnson , “[A] distinction must be drawn between the introduction of new facts and a juror’s reliance on his or her life experience when evaluating evidence.” ( Allen and Johnson, supra , 53 Cal.4th at p. 76.) “ [ T ] he distinction between the introduction of new
f acts and reliance on experience to evaluate evidence [is] as follows: ‘Jurors’ views of the evidence ... are necessarily informed by their life experiences, including their education and professional work. A juror, however , should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.’ ” ( Ibid. , quoting In re Malone (1996) 12 Cal.4th 935, 963.)
In Allen and Johnson , an eyewitness, who identified Allen as the shooter in two murders despite the witness’s timecard placing him at work elsewhere at the time,
testified that he and his coworke r, “ ‘ Jose, ’ ” often clocked in for one another to cover absences. (

Allen and Johnson, supra , 53 Cal.4th at p. 64.) Based on his own work experience, the discharged juror disbelieved the witness’s explanation because in his28

.

view, Hispanic workers would not falsify timecards. ( Id. at p. 68.) The California Supreme Court disagreed with the trial court that the discharged juror committed misconduct by relying o n facts not in evidence. ( Id. at p. 77.) The court concluded that the juror properly “relied on his life experience in evaluating [the witness’s] credibility,” and the record did not demonstrate that the juror “ignored or substituted his own beliefs for the court’s legal instructions .” ( Ibid. ) Here, too, there is no evidence Juror No. 4 disregarded the court’s instructions based on her own beliefs, and she evaluated defendant’s claim of illness and fever through the lens of her own experience with or knowledge of illness, which, by 2023, would almost certainly include COVID

- 19. This does not constitute misconduct. ( Id. at p. 78; accord, People v. Linton (2013) 56 Cal.4th 1146, 1195 [“ A juror ’ s application of his or her everyday life experience to the evaluation
of evidence is not m isconduct. ”].)

3. Inability to Make Decision Finally, the trial court expressly found that Juror No. 4 “in essence refused to deliberate based on her ... assertion that, without [certain] information, she cannot make
a decision.” The court’s finding in thi s regard appears based on Juror No. 9’s statements that, in response to certain items or information that were not in evidence, Juror No. 4 said, “[W]e cannot figure this out because we don’t have this evidence,” “ ‘ We can’t talk
about this because there is not an inventory taken of the field, ’ ” and “ ‘ Well, then we don’t know about anything else. ’ ” This falls well short of establishing that, by a demonstrable reality , Juror No. 4 was unable to discharge her duty as a juror because she could not or
would not render a decision in the case. Juror No. 4 did not say anything during the court’s inquiry of her that indicated she
would not or could not make a decision in the case, and her responses reflected understanding of the court’s instructions, including that she could accept or reject a witness’s testimony in full or in part; the evidence; and the attorneys’ arguments. Juror No. 4’s focus on issues that favored the defense was clearly a source of frustration for the29

.

other jurors, as they were not similarly pe rsuaded. However, there is no evidence in the record that the jury took a vote and Juror No. 4 refused to participate or that she told other jurors she could not decide between guilty and not guilty without further information. Rather, the record indicat es that Juror No. 4 and the other 11 jurors viewed the evidence differently. Juror No. 4 was persuaded by defendant’s claims of self

- defense and illness at the time of the interrogation, and by defense counsel’s argument concerning the missing riser; and she felt Eusebio, Daniel, and Hector were not entirely forthcoming. These were all views about the evidence and witness credibility that Juror No. 4 was
entitled to draw. Based on the foregoing, we conclude that the record does not show, to a
demonstrable reality, that Juror No. 4 could not or would not deliberate. Therefore, it was
an abuse of discretion for the trial court to find otherwise.
II. Prejudice Defendant argues that the violation of his state and federal rights necessitates reversal, even if measured under Watson or Chapman rather than treated as a structural

error. The People do not address prejudice and instead confine their arguments to the

a bsence of error. We find the court’s error under state law prejudicial under Watson , necessitating reversal. Under the California Constitution, “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opini on that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “California law generally interprets its constitutional miscarriage of justice requirement ‘as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error ’ [citations]. ” ( In re K.H.30

.

(2022) 84 Cal.App.5th 566, 607, quoting In re Celine R. (2003) 31 Cal.4th 45, 60 [ citing
Watson , supra , 46 Cal.2d at p. 836 ] .) In the context of state statutory error, the Court of Appeal explained in Henderson , “[A] n abuse of discretion in discharging a juror under section 1089 ‘ requires reversal only if it is reasonably probable that a result more favorable to the defendant would have
been reached but for the error. ’ ” 11 ( Henderson , supra , 78 Cal.App.5th at p. 564, quoting
Bow ers, supra , 87 Cal.App.4th at p. 735 ; accord, Barton , supra , 56 Cal.App.5th at

p. 516 .) Discharge of a deliberating juror leaning in favor of the defendant is obviously prejudicial. (

Henderson , supra , at pp. 565

– 566; accord, Barton , supra , at p. 516.) G iven that the record reflects Juror No. 4 found defendant’s testimony that he acted in self

defense persuasive, the error in discharging her is prejudicial and reversal is required. However, retrial is not barred under the double jeopardy clause. ( Armstr ong, supra , 1 Cal.5th at p. 454.)

11 In Armstrong and Cleveland , the California Supreme Court found the trial court abused its discretion in discharging a juror and reversed, without discussion of the operative standard. ( Armstrong, supra , 1 Cal.5th at p. 454; Cleveland, supra , 25 Cal. 4 th at p. 486; accord, Allen and Johnson, supra , 53 Cal.4th at p. 79; Wilson, supra , 44 Cal.4th at p. 841

. ) However, as discussed in Henderson , supra , 78 Cal.App.5th at p ages 564

– 566, the prejudice was obvious, as the discharged jurors in th o se cases held views that favored the defense. ( Armstrong, supra , at p. 444 [unfavorable vi ew of police and favorable view toward gang members in gang

- related murder prosecution]; Cleveland, supra , at pp. 485

– 486 [belief no crime was committed in attempted robbery case]; accord, Allen and Johnson, supra , at p. 66 [disbelief of key prosecution ey ewitness and statement prosecutor did not have a case]; Wilson, supra , at pp. 813

– 814 [lone juror holding out in favor of life in capital case] ; People v. Barton (2020) 56 Cal.App.5th 496, 516 ( Barton ) [lone juror holding out for not guilty].)31

. DISPOSITION The judgment is reversed, and this matter is remanded for further proceedings, which may include, at the prosecution’s election, retrial.

MEEHAN, J.

WE CONCUR:

PEÑA, Acting P. J.

SNAUFFER, J.