Filed 10/2/23 P. v. Grant CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EMERALD YVONNE GRANT,

Defendant and Appellant.

B324601

(Los Angeles County

Super. Ct. No. LA093193;

Appellate Division of the

Super. Ct. No. BR055463)

APPEAL from an order of the Superior Court of Los 

Angeles County. Alan K. Schneider, Judge. Affirmed.

David W. Scopp, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven D. Matthews and Amanda V. 

Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________
2

Emerald Yvonne Grant appeals the judgment entered 

following a jury trial in which she was convicted of simple battery

(Pen. Code,1 § 242, subd. (a)), as a lesser included offense of 

battery with serious bodily injury (§ 243, subd. (d)). The trial 

court suspended imposition of sentence and placed appellant on 

probation for one year with the conditions that she perform 20 

days of community labor, complete 52 anger management classes, 

and pay victim restitution.

Appellant contends the trial court abused its discretion and 

violated her Sixth and Fourteenth Amendment rights by failing 

to adequately investigate appellant’s allegation that a juror was 

sleeping during portions of the trial and determine whether the 

juror was biased against her as a result of the allegation. We 

disagree and affirm.

FACTUAL BACKGROUND

On February 21, 2020, in stop-and-go traffic on the 405 

freeway, appellant rear-ended the car in front of her in which 

Angelina Gomez DeJesus was a passenger. Following an 

altercation over the exchange of insurance information between 

the drivers, appellant returned to her car, got in, and closed the 

driver’s side window. DeJesus followed appellant and “slapped” 

appellant’s vehicle to get appellant’s attention and stop her from 

leaving. DeJesus then walked around to the passenger side of 

appellant’s car and told her, “I’ve got your license number.” As 

DeJesus was walking back to her vehicle, appellant “came from 

behind,” grabbed DeJesus by her clothing, and threw her to the 

ground. DeJesus went to the emergency room a couple hours 

1 Undesignated statutory references are to the Penal Code.
3

after the incident with a fracture to her left elbow, which 

required surgery.

Appellant did not testify or present any evidence. But 

defense counsel argued that inconsistencies in the prosecution’s 

case as to how events unfolded and problems with DeJesus’s 

credibility created a reasonable doubt as to whether appellant’s 

conduct caused the fracture to DeJesus’s elbow.

DISCUSSION

The Trial Court Did Not Abuse Its Discretion in 

Investigating Appellant’s Allegation that a Juror Was 

Sleeping During Portions of the Trial and Appellant’s 

Claim that the Juror Was Biased Against Appellant as a 

Result of Making the Allegation

1. Relevant background

At some point during trial, appellant partially stood up in 

her seat and spoke to the bailiff.2 The trial court did not hear 

what appellant said, and there was no indication any of the 

jurors heard anything.

Outside the presence of the jury after the prosecution 

rested its case, the trial court noted that it had come to its 

attention that one of the jurors had “periodically closed her eyes 

during the reading of instructions and the testimony.” The court 

stated, “I watched her, and it does not appear to the court that 

she had been sleeping. She has had some issues that she is 

dealing with. She appears to be in discomfort.” Nevertheless, the 

court said it would “bring her in to make sure that she has not 

2 This incident is not recorded in the reporter’s transcript. 

Accordingly, our account is based on the trial court’s discussion of 

the incident with defense counsel in the context of appellant’s 

motion for a mistrial.
4

slept.” The bailiff added that Juror No. 2 had brought the matter 

to his attention and explained that “[t]he reason why she was 

closing her eyes is that she has a sunburn on her back, and it’s 

uncomfortable for her so she tends to close her eyes.”

Juror No. 2 entered the courtroom and the trial court 

conducted voir dire in the presence of counsel:

“The Court: . . . [¶] . . . I noticed during the⎯some of the 

instructions and some of the testimony that you had sort of closed 

your eyes a little bit, and I just want to make sure that, first of 

all, everything was okay.”

The juror responded that she had gone camping the 

previous weekend and had gotten a sunburn on her back.

“The Court: So were you sleeping or closing your eyes?

“Juror: No. Closing my eyes because I did not put on lotion 

and it hurts.

“The Court: So you were awake the whole time?

“Juror: Yes, I was awake.

“The Court: That’s what I saw too. I noticed you closing 

your eyes, and I didn’t say anything because it appear[ed] that 

you were in discomfort and not sleeping.”

After the juror left the courtroom, the trial court declared: 

“I’m satisfied with her explanation. I looked over several 

different times, and every time I looked over her eyes would open 

back up, but it appeared that she was in discomfort.”

Defense counsel did not seek to ask the juror any questions 

about closing her eyes or appearing to sleep during trial. Neither 

did defense counsel object to the scope of the court’s inquiry nor 

ask the court to take any further action after it questioned 

Juror No. 2.
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The next day defense counsel moved for a mistrial on the 

ground that appellant’s allegation “in open court” that “a juror 

had been sleeping with her eyes closed,” might have biased the 

juror against appellant so that the juror would have “problems 

applying the burden of proof to the presumption of innocence 

based upon what [the juror] could have heard.” The trial court

responded that it did not hear what appellant had said, and it did 

not appear that the juror heard anything either. The court 

added: “I would not like to bring it to the juror’s attention. If you 

would like I could bring it to the juror’s attention and ask her, 

but that would then bring it to her attention.” Defense counsel 

agreed, and the court confirmed, “So you don’t want me to do 

that?” Defense counsel confirmed that she did not want the court 

to question the juror about whether she heard appellant’s 

allegation: “Yes. That’s correct.”

The court denied the motion for a mistrial on the ground 

that appellant had not demonstrated any prejudice.

At sentencing, appellant made an allocution, insisting that 

the juror had been sleeping during the trial. The court reiterated 

its finding that Juror No. 2 did not sleep during the trial. The 

court explained: “I watched that person very closely. I watched 

her throughout, and she was not sleeping. She said she did have 

a headache,[3] and she was closing her eyes because she was in 

pain. [¶] But I was very cognizant of her and watched, and she 

did not sleep.”

3 Juror No. 2 had stated she had a sunburn, not a 

headache, and was in pain.
6

2. Legal principles

Section 1089 permits a trial court to discharge a sitting 

juror “ ‘if, upon good cause, the juror is “found to be unable to 

perform his or her duty.” ’ ” (People v. Silveria and Travis (2020) 

10 Cal.5th 195, 262.) Our Supreme Court has held that 

“ ‘ “ ‘[o]nce a trial court is put on notice that good cause to 

discharge a juror may exist, it is the court’s duty “to make 

whatever inquiry is reasonably necessary” to determine whether 

the juror should be discharged.’ ” ’ ” (People v. Cowan (2010) 50 

Cal.4th 401, 505–506.) The trial court’s “inquiry may consist of a 

full hearing or informal questioning of the juror in the presence of 

counsel. [Citation.] ‘The specific procedures to follow in 

investigating an allegation of juror misconduct are generally a 

matter for the trial court’s discretion.’ ” (People v. Johnsen (2021) 

10 Cal.5th 1116, 1170 (Johnsen).) Indeed, “ ‘[b]oth the scope of 

any investigation and the ultimate decision whether to discharge 

a given juror are committed to the sound discretion of the trial 

court.’ ” (People v. Williams (2015) 61 Cal.4th 1244, 1277 

(Williams).) A full hearing is required only if “ ‘ “ ‘ “the court 

possesses information which, if proven to be true, would 

constitute ‘good cause’ to doubt a juror’s ability to perform his 

duties.” ’ ” ’ ” (People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 

27, quoting Cowan, at p. 506.)

Good cause to remove a juror exists when the juror is 

sleeping during trial (Williams, supra, 61 Cal.4th at p. 1277; 

People v. Thompson (2010) 49 Cal.4th 79, 137; People v. Bonilla

(2007) 41 Cal.4th 313, 350), but not when there is a “mere 

suggestion of juror ‘inattention’ ” (People v. Espinoza (1992) 3 

Cal.4th 806, 821; People v. Williams (2013) 58 Cal.4th 197, 289). 

At the conclusion of its inquiry, a trial court may discharge a 
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seated juror only if the juror’s unfitness to serve appears “ ‘in the 

record as a demonstrable reality.’ ” (People v. Armstrong (2016) 1 

Cal.5th 432, 450; People v. Martinez (2010) 47 Cal.4th 911, 943

(Martinez).) On appeal, in assessing whether the trial court 

abused its discretion on the question of juror misconduct, “ ‘ “[w]e 

accept the trial court’s credibility determinations and findings on 

questions of historical fact if supported by substantial 

evidence.” ’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1194

(Linton).)

3. The trial court did not abuse its discretion

Appellant contends that the trial court’s brief inquiry was 

inadequate to determine whether Juror No. 2 had been sleeping 

during crucial portions of the trial or whether the juror could be 

impartial as a result of appellant’s allegation that she had been 

sleeping. We disagree.

Even before the bailiff reported that the juror had said she 

closed her eyes because of an uncomfortable sunburn, and before 

the trial court conducted voir dire, the court observed: “I watched 

her, and it does not appear to the court that she had been 

sleeping. . . . She appears to be in discomfort.” In the presence of 

counsel, the trial court asked Juror No. 2 directly if she had been 

sleeping during the trial. Juror No. 2 answered that she had 

closed her eyes, but was awake the whole time, and did not sleep. 

The court noted that the juror’s statement confirmed its own 

observations that she was not sleeping but was in pain. After 

Juror No. 2 left the courtroom, the trial court declared: “I’m 

satisfied with her explanation. I looked over several different 

times, and every time I looked over her eyes would open back up, 

but it appeared that she was in discomfort.”
8

The trial court adequately investigated possible misconduct 

by Juror No. 2. That inquiry⎯consisting of direct questions to 

the juror and the court’s own observations of the juror’s demeanor 

during trial⎯was all that was reasonably necessary to determine 

if Juror No. 2 was sleeping and should be discharged. We defer 

to the trial court’s credibility call. (Linton, supra, 56 Cal.4th at 

p. 1194; see Johnsen, supra, 10 Cal.5th at p. 1170 [“On this 

record, we have no basis to second-guess the trial court’s 

credibility determination”].) When it comes to a sleeping juror, 

the basis for a “demonstrable reality” of unfitness exists only 

when “there is convincing proof the juror actually slept during 

trial.” (People v. Bowers (2001) 87 Cal.App.4th 722, 731.) That 

standard was not met in this case. The trial court satisfied its 

duty to investigate, and did not abuse its discretion in concluding 

that no good cause existed to dismiss the juror. (See People v. 

Ochoa (1998) 19 Cal.4th 353, 418 [rejecting claim of inadequate 

inquiry into allegation that a juror had been sleeping on the 

ground that trial court had “conducted an inquiry into [juror’s] 

attentiveness and satisfied itself and counsel that he was alert. 

Nothing more was required”]; Martinez, supra, 47 Cal.4th at 

p. 943 [in the absence of showing that juror was unable to fulfill 

functions as a juror, no prejudice in trial court’s decision not to 

investigate further].)

Appellant further asserts that the court failed to 

adequately investigate whether Juror No. 2 was biased against 

appellant because of appellant’s allegation that the juror had 

been sleeping during trial. But defense counsel expressly 

declined the court’s offer to question the juror on the issue, and 

there is no indication in the record that the juror even heard 

appellant’s comment. Indeed, appellant fails to present any 
9

evidence to support her speculative claim that Juror No. 2 was 

biased. We will not presume bias, and on this record, in the 

absence of any suggestion of juror bias as a demonstrable reality, 

we do not question the trial court’s decision not to further 

investigate appellant’s claim. (See Martinez, supra, 47 Cal.4th at 

p. 943.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

KWAN, J.*

We concur:

CHAVEZ, Acting P. J.

HOFFSTADT, J.

* Judge of the Superior Court of Los Angeles County, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.