People v. DuranPeople v. Duran
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
A. Prosecution case
1. Forcible sex acts against Linda A.
On January 24, 2023, 58-year-old Linda A. lived in a tent near the intersection of Tuxford Street and San Fernando Road in Los Angeles, California. At 2:30 a.m., a man later determined to be Duran woke Linda A. He forcibly inserted his penis into Linda A.‘s anus for five or ten minutes after beating her and suffocating her by pressing his hand over her nose and mouth. Duran next forcibly inserted his penis into Linda A.‘s vagina.
When Linda A. heard another man outside her tent, she yelled for help. Duran ran to the tent flap and spoke with Linda‘s friend Ronald Payne or R. Pete,1 saying it was nothing and he knew Linda. Linda A. ran out of her tent, saying she had been raped. Duran fled. R. Pete and Linda A. went to tell Linda A.‘s friend Lamar in a nearby tent and called 911.
On January 8, 2023, 43-year-old Shanan A. was living in a tent near San Fernando Road and Tuxford Street. In the early morning, she went to visit her best friend, Lamar. Out of nowhere, Duran approached Shanan A. and grabbed her vagina. She “went off” on him but he ignored her. Shanan A. left to go to a store.
Shanan A. had to pass by Lamar‘s tent on the way back to her tent. She saw Duran still present. Shanan had a small razor in her hand. Duran took out a knife and told Shanan A. that he could cut her too. Lamar appeared and told Shanan A. to leave. Shanan A. went to her tent.
Duran later appeared outside Shanan A.‘s tent. She grabbed a broom, but Duran punched her in the forehead and jaw four times. Shanan A. screamed for Lamar and her other friend Gabriel to help her. Duran put his hand over her nose and mouth. Shanan A. could not breathe. Duran dragged her to the bed. He pulled down Shanan A.‘s pants and inserted his penis into her vagina. Shanan A. cried and asked him to stop. She also told him that she had syphilis and cancer to get him to stop. Duran told her to shut up. After Duran left, Shanan A. went to Lamar‘s tent to call 911.
On January 25, 2023, LAPD officers stopped Duran because he and his bicycle matched the descriptions of the suspect and his bicycle in a crime alert for two rapes that occurred around San Fernando Road and Tuxford Street.
Data was extracted from Duran‘s cellphone. An analyst processed a video file on the cellphone. The results were memorialized in a document introduced at trial as People‘s 23. The G.P.S. coordinates of the video on the cellphone indicated that it was created at the intersection of San Fernando Road and Tuxford Street. The analyst determined that no changes or modifications to the video were made. The video depicted a woman with her legs up and her vagina and anus exposed. A man in front of the woman touched her vagina with his fingers. The woman said, ” ‘Please stop. It hurts. Stop.’ ” ” ‘I just want to be left alone.’ ” The police detectives later showed the video to Linda A. She recognized her voice and her belongings shown in the video.
DNA testing of samples from Duran‘s right palm and left fingernail indicated that Duran and Linda A. were likely contributors.
B. Defense case
Duran testified that he had not met Linda A. or Shanan A. before trial. He admitted to being around the tent at 1:00 a.m. “about a day before” his arrest, looking for someone named Largo to buy marijuana. Duran met a woman named Brittan or Brittany who knew Largo. After parking his bike, Duran used drugs with the woman in a tent. Duran passed out. When Duran woke, he discovered that his cellphone, watch, and money were
Duran did not know how the video got on his cellphone. He denied that his penis was depicted in the video. He did not know how Linda A.‘s DNA got on his hand and fingernail. He also denied having sex with Shanan A. and Linda A.
Duran testified that when the police detectives first interviewed him, he said that he went straight home after work, and he did not tell them that he went to the San Fernando encampment to buy marijuana. Duran admitted that he lied to the police. Later, after the detectives told Duran that a sexually explicit video was found on his cellphone, he told them that he engaged in consensual sex with the woman. Duran believed that he had sex with the woman named Brittan or Brittany because she had mentioned having sex in exchange for money.
C. Inquiry of jurors
1. Notes submitted by Juror 4 about Juror 10
The jury began deliberating on Wednesday, June 12, 2024, at 2:35 p.m. On June 14, 2024, the jury submitted a note stating, “We read back [sic] the jury instruction specificly [sic] about specalation [sic] and what is what [sic] we are here to do. I am concerned that we will not be able to reach a verdict. Jury [sic] #9, #10 have a new case theory.” The court read
Later that day, the foreperson submitted another note to the court. The note read:
“Like to request that [Juror] #10 be dismissed/replaced. Based on that [Juror] #10
continues to speculate on things that are not presented or in evidence. #10 would comment on things like “Why didn‘t they track down R. Pete or any witness to Shanan‘s rape.” Another would say, “Why are there different dates created on the file for the cellphone.” Also [Juror] #10 just doesn‘t want to follow jury instructions. Also refuses to accept the phone video as evidence. Juror #10 also alleges that the evidence could have been tampered/placed to frame the defendant. Also believes that there is extorsion [sic] and that Shanan could have been a prostitute. I am concerned that we are not able to have a verdict because of [Juror] #10.
Defense counsel proposed that the court speak with Juror 10 and the foreperson to ascertain the questions being asked. Defense counsel further proposed that the court address all the jurors and tell them to follow the law and not do any outside research. The prosecutor suggested that the court separately ask each juror about Juror 10 to determine if he was engaging in misconduct.
The court responded, “I have to be very careful here because I don‘t want to invade the province of jury deliberation as much as I can avoid doing that and get to the heart of the matter. That‘s my initial balance.”
2. Interview with Juror 4
The court first spoke with Juror 4, the foreperson. Juror 4 confirmed that he wrote the notes to the court. The trial court cautioned Juror 4 to not reveal “specifics about the context of [the] deliberations.”
Juror 4 stated that Juror 10 was participating in the deliberation process and was “one of the main people that is talking.” But Juror 10 only talked about “his own theories about the case, his own facts . . . what he thinks. It‘s never about the facts.” As stated in the note, Juror 4 described as examples that Juror 10 concluded that someone could have “tampered” with the evidence to frame Duran or committed “extortion.” Juror 10 also believed that Shanan A. could have been a prostitute.
The court directed Juror 4 to read
The court concluded the interview by admonishing Juror 4 to not share anything about their interview with the other jurors. The court decided to speak with each juror to avoid “ganging up on” Juror 10 and to corroborate the allegations by Juror 4.
3. Interview with Juror 1
When the court began its interview of Juror 1, it explained that the purpose of the interview was to gather information. The court directed Juror 1 to not reveal anything about the facts being discussed in the jury room.
The court read Juror 4‘s note to Juror 1. Juror 1 agreed that the note was accurate. Juror 1 stated that Juror 10 was not
Juror 1 stated that Juror 10 also violated
Juror 1 additionally referred to
At the conclusion of the interview, the court advised Juror 1 that it was merely “information gathering.” The court admonished Juror 1 to avoid speaking about the interview with the other jurors. The court specifically stated, “So if anybody is curious or even gives you a look, I don‘t want you to telegraph anything about what we talked about. [¶] . . . [¶] As if you were a stone wall.”
4. Interview with Juror 2
The court advised Juror 2 of Juror 4‘s note and read it to Juror 2. Juror 2 confirmed that Juror 10 was not following instructions because he was “speculat[ing] on things that [were]
Juror 2 stated that Juror 10 did not want to follow the jury instructions. Before asking Juror 2 to specify any instructions that Juror 10 did not want to follow, the court informed Juror 2 that it was “trying to avoid . . . invad[ing] . . . in the deliberation details.” Juror 2 explained that Juror 10 applied his personal work experience when questioning the validity of the cellphone video evidence. Juror 2 also described how Juror 10 claimed that there was a discrepancy in the date of the video file on the cellphone. The jurors referred Juror 10 to
Juror 2 did not think Juror 10 was refusing to deliberate but reaffirmed that he was engaging in speculation. Specifically, Juror 10 speculated about the case involving prostitution.
The court concluded by admonishing Juror 2 to not disclose anything from the interview to the other jurors, directing Juror 2 to be a “stone wall.” The court stated that the purpose of the interview was to “gather information without influencing the jury.”
5. Interview with Juror 3
The court began its interview of Juror 3 by stating, “I want to be careful because I really . . . I don‘t want to get into specifics of your deliberation. Okay? And it might sound like I am, but I am going to be very careful to try . . . not to learn what specifically that went on during the deliberation. I am trying to focus a little bit.”
Juror 3 referred to the definition of evidence in
Juror 3 also referred to
At the conclusion of the interview, the court admonished Juror 3 to not disclose the interview with the other jurors and to be a “stone wall.”
6. Interview with Juror 5
At the beginning of the interview with Juror 5, the court explained that it was “information gathering” and ordered Juror 5 to not share any of the interview with anyone else. During the interview, the court also explained, “I am trying very hard not to peak into the jury deliberation process. Okay. I am just trying to somehow get a sense of what‘s going on there without getting too deep into the specifics. If I want to get more specific, I will do it.”
The court read the note from Juror 4. Juror 5 agreed that Juror 10 was “speculat[ing] on things that [were] not presented or in evidence.” Juror 5 stated that Juror 10 was not following the jury instructions. Juror 5 referred to the part of
According to Juror 5, Juror 10 was also adamant that Lamar was sitting in the audience during trial and questioned why he was not called as a witness. Juror 10‘s theory was that the case involved “a prostitution deal gone wrong.” Juror 10 believed “Shanan could have been a prostitute” and Lamar “should have been on the stand” because he was a pimp who could have “beat up the victims.” Juror 5 had concerns that Juror 10 was refusing to follow some of the jury instructions. Juror 10 drew upon his personal knowledge to conclude that the police could have planted the video on Duran‘s cellphone.
Near the conclusion of the interview, the court instructed Juror 5 to not disclose anything to anyone else and reminded Juror 5 that the court was merely “information gathering.” The court directed Juror 5 to “[j]ust be a stone wall about this conversation” and it “[didn‘t] want to affect the deliberations.” At the end of the interview, the court reiterated to Juror 5, “You are going . . . just keep everything I said in mind . . . on the QT here for us.”
7. Interview with Juror 6
The court read the note from Juror 4 to Juror 6. Juror 6 believed that Juror 10 was “speculat[ing] on things that [were] not presented or in evidence.” Juror 6 first stated that Juror 10 challenged the document related to the cellphone evidence based on his personal expertise. Juror 10 believed “his expertise was
Juror 6 further agreed with the note‘s statement that Juror 10 did not follow the jury instructions. Juror 10 believed the case involved prostitution and questioned where Duran had the money to retain defense counsel. Juror 10 presumed that defense counsel was privately retained because he did not “look like a public defender.”
Juror 6 stated that Juror 10 was not following
The court told Juror 6 that their conversation was to remain under “a cone of silence.” The court further instructed Juror 6 to not “let it affect [Juror 6‘s] deliberations” and to “be a stone wall.”
8. Interview with Juror 7
The court initially told Juror 7 that their conversation was not to be shared with anyone else. The court also indicated it did not want it to affect deliberations. The court explained, “I am trying to avoid as much as I can . . . the specific things that are discussed through this whole deliberation process. There is going to be some of that, but I am just trying to be careful.”
The court read Juror 4‘s note to Juror 7. First, Juror 7 agreed that Juror 10 was “speculat[ing] on things that [were] not
Juror 7 further agreed that Juror 10 did not “want to follow jury instructions,” reasoning, “He‘s speculating a lot. He is formulating his own theory and not focused on evidence presented.” Juror 7 referred to the definition of evidence in
According to Juror 7, Juror 10 refused to accept the cellphone video as evidence, alleging that it could have been “planted” or “placed to frame the defendant.” Juror 10 questioned how the video was placed in Duran‘s cellphone because with current technology allowed it to “easily [be] put” in a phone.
Finally, Juror 7 stated that Juror 10 formulated a theory that the case involved extortion and prostitution and Lamar was Shanan‘s and Linda‘s pimp.
The court admonished Juror 7 to not share any of their conversation with the other jurors and instructed Juror 7 to be a “stone wall.” The court also stated, “It is a cone of silence . . . . It is not to let this interfere with your deliberation process. Not let it affect your process. It‘s information gathering only, and it‘s not meant to prejudice anything or imply anything. It‘s really just me getting information from you. [¶] You are not going to share this [with] any of the other jurors or let it affect your deliberations.”
The court read the note to Juror 8. Juror 8 initially agreed that the statements in Juror 4‘s note were accurate. Juror 8 stated, “I think he maybe wanted to just think possibly we could look more into the evidence” and wanted “more things” to “look into to make a decision of guilty or not guilty.” Juror 8 did not “really think” that Juror 10 was speculating. Juror 8 believed that Juror 10 was following
The court stopped Juror 8 from discussing the details of her thoughts about the evidence.
The court advised Juror 8 to be “a stone wall when it comes to the things [they] discussed” and ordered Juror 8 to not share any of the information they discussed. The court did not want Juror 8 to “feel prejudiced for or against anybody on the jury.”
The trial court observed that Juror 8 was elderly and “a little slower . . . on the uptake of the instructions.”
Juror 9 agreed that the statements in Juror 4‘s note were accurate. Juror 10 stated that someone could have tampered with the evidence to frame Duran.
Juror 9 stated that from the beginning of deliberations, Juror 10 stated “there is more . . . to the case [than] we are being allowed to see or to hear.” He specifically stated that Lamar could have been Shanan‘s and Linda‘s pimp. The court stopped Juror 9 from revealing his thoughts about Lamar. Juror 10 believed that the case involved extortion and that Lamar arranged for the incidents to happen. Juror 9 stated that Juror 10 believed “they changed their mind[s], that‘s why everything got here.”
On more than one occasion, Juror 10 stated that he refused to accept the cellphone video as evidence. Juror 9 remembered Juror 10 stating that someone had “tampered” with Duran‘s cellphone. Juror 9 confirmed that Juror 10 questioned People‘s 23, which was a document related to the cellphone evidence. Juror 10 stated that the time was different for the video file. He repeatedly said “he knows how these things work” from his job experience. Juror 10 stated that “when a file is accessed again and may be changed or whatever, it will note a different time and date on the file.”
When providing his interpretation of the video, Juror 10 “said it look[ed] like they were having fun. That it was something that they had agreed to, but then she could have changed her mind. And then she decided that she didn‘t want to continue with the game. Because we know that bipolars, so they can change their mind, like flip. And then that‘s when she started yelling that. Yeah, he keeps saying that it was
Juror 9 told the court that Juror 10 did not follow
Juror 9 further stated that Juror 10 was biased against the victims “because of their mental instability.” Specifically, Juror 10 “talked about their inability to really probably understand what was happening due to all the medications that they been taking.” He repeatedly said that “they could have been under drugs” and “they were having a party, and then changed their mind[s] . . . due to their . . . being bipolar.”
Juror 9 told the court that Juror 10 was not following
At the conclusion of the interview, the court told Juror 9 that everything they discussed was confidential. Juror 9 confirmed that the interview would not affect Juror 9‘s “deliberation process.” The court instructed Juror 9 to be a “stone wall” and not “telegraph or state . . . anything that came out of [their] conversation.”
11. Interview with Juror 11
The court opened its interview with Juror 11 by stating, “So I am going to be asking some questions, and from the questions I don‘t want you to form opinions about any of the other jurors or
The court read Juror 4‘s note to Juror 11. Juror 11 agreed that Juror 10 was speculating and questioned why “RP” and other witnesses to Shanan‘s rape did not testify. Juror 11 believed that Juror 10 was “trying to follow” the instructions but he was “reading possibly other things into” them “that might not be in” them. Juror 10 felt strongly about someone tampering with the evidence. He also believed there was extortion and Shanan could have been a prostitute. Juror 10 also speculated that “if he held out with a nondecision, then it might go back and be retried.” Juror 11 did not believe Juror 10 was biased against anyone. Juror 10 asserted that he had special expertise in computers, programing, and troubleshooting software that made him challenge the accuracy of the time stamp on the video. Juror 10 felt “he might have insight” that the other jurors did not have.
The court admonished Juror 11 to not discuss their interview with anyone and to be a “stone wall.” The court also stated, “[W]hat I don‘t want you to do I feel like I am casting aspersions on anybody . . . on the jury. No. 10 or anyone else. [¶] . . . [¶] It‘s just really fact gathering. [¶] . . . [¶] I want the jury to, if it begins to deliberat[e] again, to continue where they were. For example, without having anything that I am doing now change or interfere with that.” Juror 11 promised to not have their conversation affect the deliberations.
The court first explained to Juror 12 that it would be asking questions and Juror 12 should not feel that anyone did anything wrong.
When asked if Juror 10 was “speculat[ing] on things that [were] not presented or in evidence,” Juror 12 stated that Juror 10 “doesn‘t want to use the information that we all received within this case and . . . do what a juror is supposed to do. And use that evidence and information and make a decision based on . . . that. . . . He comes up with a lot of theories that are [sic] aren‘t based on any truth or anything that was actually even brought up in court. And he won‘t abide by the evidence or what was—actually brought up in court.” Juror 12 further stated, “[W]hen we tried [to] rationalize with him and remind him that . . . [w]e need to use information that we received in court and make a decision based [on] that and not speculate.”
Juror 12 confirmed that Juror 10 questioned why “RP” or any other witness to Shanan‘s rape was not called to testify. On multiple occasions, Juror 10 stated his belief that extortion was involved, and Shanan A. could have been a prostitute.
Juror 12 confirmed that Juror 10 asserted special expertise about the cellphone evidence “when he is obviously not qualified, or it‘s not his job to be that person.” Juror 10 “quickly disregarded the video . . . because . . . he has a background in video and technology and kind of AI. . . . He thinks that planting a video is very common thing and how it‘s an easy thing to do.”
Juror 12 stated that Juror 10 did not want to follow the jury instructions. Juror 12 stated, “I would say that he continuously doesn‘t want to abide by the rules.”
Juror 12 stated Juror 10 did not follow
The court told Juror 12 that he did not want their conversation to influence further deliberations. The court reminded Juror 12 to be a “stone wall” and not discuss their conversation with anyone.
13. Interview with Juror 10
The court began its interview with Juror 10 by stating that it was “an information gathering process.” The court stated, “It is not designed to accuse you or anyone else of doing anything wrong.” At one point, the court stated, “If all of you go back and continue deliberations, I wouldn‘t want this process of me asking all the jurors what was going on, including you, to interfere with the process that the instructions tell you are collaborative.”
The court read the note to Juror 10. Juror 10 stated that he discovered a discrepancy contained in People‘s 23, the document related to the cellphone video evidence. To interpret the document, he used his personal expertise of “working with computers, servers, networks, internet and all of that kind of stuff.” Juror 10 believed “[d]ates and files and stuff can be manipulated and changed and sources and the metadata and stuff like that.” He believed that two different dates should not have been listed for the same file on the document. Juror 10
The court referred Juror 10 to
Juror 10 believed it was possible that Lamar was a pimp and the two victims were prostitutes. He further believed extortion was involved. Juror 10 believed Shanan A. was a prostitute based on her four interactions with Duran and her “going around Mr. Lamar‘s area and stuff.” Juror 10 also referred to Shanan A. seeing Duran talking with Lamar before coming into her tent.
Juror 10 also discussed Shanan A.‘s mental health condition. He understood that when not taking their medication, people with bipolar disorder “get very aggressive.” The
Juror 10 denied being biased against police officers. He stated that another juror “jumped to that conclusion.” Juror 10 revealed that he “was almost a police officer” and “went through the training.”
During the interview, Juror 10 admitted, “I profile people just like people profile me. I profile you, the two attorneys, your client, the officer right here. And I profile everybody here.”
At the conclusion, the court reminded Juror 10 to not reveal any of their conversation to any of the other jurors and instructed him to be a “stone wall.” “I am here because I am supposed to make sure that whoever is sitting in that chair gets a fair trial.”
D. Trial court‘s order to remove Juror 10
After interviewing the jurors, the prosecutor moved to disqualify Juror 10. The court found good cause to remove Juror 10 based on misconduct. The court selected an alternate juror to replace Juror 10. The reconstituted jury began deliberations anew.
II. Procedure
On June 17, 2024, the jury found Duran guilty of forcible rape of Linda A. (
The jury also found Duran guilty of forcible rape of Shanan A. (
The trial court sentenced Duran to a total term of 50 years to life. The court imposed consecutive sentences of 25 years to life on counts 1 and 3. The court imposed a concurrent sentence of 25 years to life on count 2.
DISCUSSION
Duran argues that the trial court improperly removed Juror 10. He also argues that the court‘s inquiry of the jurors about Juror 10‘s misconduct improperly invaded the sanctity of deliberations. We reject both arguments.
I. Section 1089 and the demonstrable reality test
II. The trial court‘s inquiry was a proper exercise of its discretion
Duran argues the trial court‘s inquiry into Juror 10‘s misconduct unnecessarily intruded upon the sanctity of jury deliberations. He asserts that the court abused its discretion by asking each juror about the allegations against Juror 10 contained in the note written by Juror 4, directing the jurors to instructions that Juror 10 might not be following, and “ferreting out” the jurors’ mental processes. We disagree.
If a trial court learns that a juror is unable or unwilling to deliberate, it may conduct ” ‘whatever inquiry is reasonably necessary to determine’ ” whether grounds exist to discharge him or her. (People v. Cleveland (2001) 25 Cal.4th 466, 484 (Cleveland).) ” ’ “The specific procedures to follow in
“The manner in which the trial court conducted its inquiry is subject to review for abuse of discretion.” (People v. Fuiava (2012) 53 Cal.4th 622, 712 (Fuiava).)
When first informed of the possible misconduct by Juror 10, the trial court initially reinstructed the jurors with CALCRIM Nos. 200, 201, 220, 222, and 3550. The court interviewed the other jurors only after the reinstruction appeared unhelpful as indicated by a subsequent note from Juror 4, the foreperson, and personally speaking with him. The court stated, “I would not make a judgment on the foreperson‘s statement alone.” With information that Juror 10 might be engaging in misconduct, the court was required to conduct whatever inquiry was reasonably necessary to determine whether misconduct had occurred. (Cleveland, supra, 25 Cal.4th at p. 480.)
Duran complains that the trial court should have started the inquiry with Juror 10. The Supreme Court in McGhee
Here, the trial court took great care in avoiding any such intrusion. With each juror, the trial court articulated the boundaries of its inquiry. It stated that the purpose of the interview was to gather information. The court directed each juror not to reveal anything about the facts being discussed in the jury room and advised its intention to avoid invading in the deliberations. If a juror attempted to comment on specific details discussed during deliberations, the court would stop the juror. The court began and concluded each interview with the direction that the juror was to be a “stone wall” and not reveal or “telegraph” anything discussed to anyone including the other jurors.
Duran also fails to state why starting with Juror 10 was problematic in this case. Again, the trial court was careful. It opted to not begin with Juror 10 to avoid “ganging up on” him in the courtroom. The court stated, “If he were to remain on the jury, I don‘t want to create a situation where I have made matters worse by going through the process. [¶] But trying to gather inform[ation], I have been trying to tell the jurors that they should remain as they were in the jury deliberation, unaffected by the conversations that I am having.”
The court proposed “literally start[ing] with Juror No. 1 and just ask[ing] some of the same questions.” The court stated,
Duran further argues that when the trial court interviewed Juror 10, the questions “went far beyond asking the juror about the allegations against him, probing the logic of his conclusions, and the bases for his theories.” Duran specifically refers to the court‘s inquiry of Juror 10‘s belief that someone tampered with the cellphone video evidence and his interpretation of the
The trial court asked Juror 10 about his interpretation of the data because it needed to understand the allegation that Juror 10 drew from his job experience to interpret that evidence. The court was trying to determine whether Juror 10 was interpreting the evidence based on his life experience rather than “specialized information obtained [from] outside sources.” The court admitted to spending “a little extra time” with, and asking additional questions of, Juror 10 to determine whether his speculation was “based on something outside of the evidence versus [an] analysis of the evidence itself.” The trial court‘s questions were reasonably necessary for this determination.
Duran additionally contends that the court‘s inquiry was impermissibly suggestive. He criticizes the court for asking each juror about the details of Juror 10 alleged in the note, rather than generally asking if any juror was failing to follow instructions or was speculating about the evidence. But the court explained, “the entire inquiry starts with the note . . . there is a lot of detail in that note . . . so that‘s why each of the jurors was asked about the content of the note itself in its detail.” The court added, “I am trying to remain neutral with the jurors as best I can to get the information that I think I need.” The court‘s questions were restrained and limited to the allegations of misconduct.
Duran also complains that the trial court impermissibly suggested affirmative responses to questions about whether Juror 10 was not following certain jury instructions. We reject Duran‘s complaint. The court made a set of instructions available during the interviews and permitted each juror to point
The absence of improper influence by the court is further supported by the jurors not all flagging the same instructions. For example, seven of the jurors believed Juror 10 was not following CALCRIM No. 222, and three jurors believed he was not following CALCRIM No. 300. Some of the jurors even believed Juror 10 did not violate certain instructions. For example, Juror 4 believed Juror 10 did not violate CALCRIM No. 300, and Juror 8 believed that Juror 10 followed CALCRIM Nos. 222 and 300.
More significantly, the jurors flagged specific instructions only after describing the misconduct in which Juror 10 engaged. The jury instruction to which each juror referred merely identified the law violated by that misconduct.
We conclude that the trial court did not abuse its discretion by interviewing each juror about the allegations against Juror 10 as listed in Juror 4‘s note. We further conclude that during the inquiry, the court took sufficient precautions to avoid invading the sanctity of deliberations and improperly suggesting to the jurors that Juror 10 was engaged in misconduct.
III. Demonstrable reality
The trial court identified Juror 10‘s refusal to follow the court‘s instructions as the misconduct in which he engaged. “A juror who refuses to follow the court‘s instructions is ‘unable to perform his duty’ within the meaning of [section] 1089.” (People v. Williams (2001) 25 Cal.4th 441, 448, disapproved on another ground by Barnwell, supra, 41 Cal.4th at p. 1052.) To support its finding of misconduct, the trial court primarily relied on two acts by Juror 10. First, Juror 10 speculated about Lamar being present in the courtroom. Second, Juror 10 used his job expertise to conclude the cellphone video evidence was fabricated.
A. Belief that Lamar was present in the courtroom
According to the trial court, all the jurors believed Juror 10 “was speculating about things that were not presented in the evidence.” Juror 10 initially admitted to the trial court his beliefs that Lamar was a pimp and Shanan A. and Linda A. were his prostitutes. Juror 10 also admitted that he determined Lamar was the man who accompanied Shanan A. to the courtroom. He further admitted that he based this determination on his comparison of the voice of Shanan A.‘s companion to Lamar‘s voice on a recording introduced during trial.4
The trial court found that Juror 10‘s belief “upon matters that were outside the scope of the evidence” was “so wildly inappropriate . . . for a juror.” The court explained that Juror 10 took information “from outside the courtroom and [brought] it into deliberations and form[ed] opinions based upon that information.” The court concluded that Juror 10 “was literally looking at evidence that is not introduced into the case for purposes of making decisions about the case. [¶] . . . [¶] That‘s a glaring example of something that I believe is misconduct for him to do . . . .”
The court: Now, you mentioned . . . that you understand that Lamar was in the courtroom?
Juror No. 10: Yes, I believe. I can‘t swear for sure, but I believe that‘s who he was. But when I heard the person talking, which now you are telling, I guess, I shouldn‘t. But this is what I heard outside. I heard the voice. But it‘s the voice that sounds the same as what I heard on the recording.
The court: You shared—did you share that information with the other jurors?
Juror No. 10: Ah, I might have at the last time before everything was getting kind of heated. . . .
Juror 5 confirmed that Juror 10 questioned why Lamar was not called as a witness when he was present in the courtroom. Even if Juror 10 did not divulge his voice comparison to the other jurors, his consideration of Lamar not being called to testify despite his presence in the courtroom remained a matter outside the evidence that he considered and raised for other jurors to
B. Reliance on personal expertise
The trial court also found that Juror 10 improperly drew from “his field of experience to interpret People‘s 23.”
In Allen and Johnson, the Supreme Court addressed a juror‘s introduction of a personal theory not based on the record. An eyewitness to the underlying crime was impeached by evidence of his employment timecard that showed he was at work, not at the location of the crime. (Allen and Johnson, supra, 53 Cal.4th at p. 64.) The eyewitness explained that he and his coworker “Jose” often clocked in for each other to show they were at work, even though they were not. (Ibid.) During deliberations when discussing the eyewitness‘s explanation of the timecard evidence, the suspect juror said, ” ‘That‘s a lie. I know Hispanics, they never cheat on timecards, so this witness . . . was at work, end of discussion.’ ” (Id. at p. 66.) The Court determined that the remark did not constitute misconduct because it “did not involve specialized information from an outside source,” but was “an application of life experience.” (Id. at p. 78.)
The Supreme Court distinguished 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.) For the former, the Court quoted from In re Malone (1996) 12 Cal.4th 935, to which the trial court here also referred. In In re Malone, the suspect juror was a psychologist who disputed the accuracy rate of polygraph tests claimed by polygraph examiners. The Supreme Court disapproved of “discuss[ing] an opinion explicitly based on
Juror 10‘s opinion about the cellphone video evidence from evaluating the data in People‘s 23 was not based on mere life experience. He understood the different time stamps on the document to indicate the video file was modified. He learned about the significance of time stamps from his job experience working with computers. The different time stamps led Juror 10 to believe that someone tampered with the cellphone video evidence. This purported significance of the time stamps was a new fact based on Juror 10‘s specialized knowledge that he obtained from sources outside of the trial. Regardless of whether Juror 10‘s understanding of the time stamps was correct, his interpretation of them and his sharing that information with the other jurors constituted misconduct.
The record—which includes Juror 10‘s reliance on his job expertise in interpreting the cellphone evidence, as well as his determination that Lamar was present in the courtroom during trial—established a demonstrable reality that Juror 10 was unable to follow the law and could not perform the duties of a juror. (Barnwell, supra, 41 Cal.4th at p. 1053.) We conclude the trial court was justified in discharging Juror 10.
We affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
EGERTON, Acting P. J.
ADAMS, J.