People v. Artale CA4/1 ( 2021 )

Filed 10/15/21 P. v. Artale CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076797
Plaintiff and Respondent,
v. (Super. Ct. No. SCE374709)
CHRISTOPHER JAMES ARTALE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Reversed.
Nancy J. King, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve
Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Christopher James Artale of second degree murder
with a firearm (Penal Code, §§ 187, subd. (a), 12022.5, subd. (a)) after he shot
and killed Aldo Prado.1 Artale claimed he shot Prado in self-defense. The
jury only reached a guilty verdict after the trial court discharged a holdout
juror, Juror No. 1. The trial court found Juror No. 1 was “not following the
law,” “was predisposed[,] and essentially did not participate in the jury
deliberation process.” Artale contends the trial court erred by discharging
the holdout juror. We agree that, under the heightened standard of review
that applies to a trial court’s decision to discharge a seated juror, the trial
court’s decision here is not manifestly supported by evidence. Juror No. 1’s
inability to render a fair and impartial verdict based on the evidence
presented at trial does not appear in the record as a demonstrable reality.
Because we hold that the judgment must be reversed based on the trial
court’s error in discharging Juror No. 1, it is unnecessary for us to consider
Artale’s remaining arguments other than his challenge to the sufficiency of
the evidence. We conclude the evidence is sufficient to sustain his conviction.
Although we reverse the judgment based on the court’s erroneous discharge
of a sitting juror, there is no double jeopardy bar to retrial of the case.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of this section, we state the facts in the light most
favorable to the judgment. (See People v. Coleman (2007) 146 Cal.App.4th
1363, 1366.)
Artale testified in his own defense and stated that he and Prado met in
2015. Artale admitted he purchased drugs, including heroin, crystal meth,
and Suboxone, from Prado, and they were also friends. Artale knew that
Prado had some incidents involving violence in his past, but Artale and his
wife continued to socialize with him from 2015 through 2017.
1 Further statutory citations are to the Penal Code unless otherwise
indicated.
2
On October 1, 2017, Artale agreed to help Prado move out of a room he
was renting from Annette G. Annette overhead an argument between the
two men after Artale arrived later than anticipated. Prado was upset with
Artale for being late, and Artale became angry because Prado was not
packed. Annette heard Artale say, “ ‘Fuck. What the fuck?’ ” and heard
Prado tell Artale, “ ‘Shut up’ ” and “ ‘Respect her house.’ ” Annette heard
Artale say, “ ‘Fuck this shit,’ ” and saw him pull away quickly in his truck.
Prado was upset after Artale left. He apologized to Annette for Artale’s
behavior and drove away in his car in the same direction as Artale.
Artale claimed that Prado picked up a knife and held it about six to
eight inches from his head during their argument at Annette’s house. Artale
“was terrified” and did not understand why Prado was so upset. He got into
his truck and sped away. He later saw Prado was following him. Artale
testified that Prado was yelling out the window at him and swerving, and
while they were stopped at a red light, Prado threatened “ ‘I’m going to fuck
you up.’ ” At some point Artale lost sight of Prado but thought he was still
following him. Artale said he was scared, but he never called 911 or his
family to alert them that Prado had pulled a knife on him or was following
him.
Artale testified that, when he got home, he parked his truck at the curb
in front of his house. He walked through the security gate down the sloped
driveway to the “downstairs” area of the house and retrieved a gun. Artale’s
wife was in the bedroom where he retrieved the gun, but he did not tell her to
call 911 or alert his parents who were in the home too. Artale went back
outside with the gun. He left the gun on a bench in the carport, saying he
“had intentions of working on [his] truck.” Artale then decided to return to
the top of the driveway and saw Prado coming up the hill with a knife in his
3
hand. Artale went back down the driveway to retrieve his gun. When he
turned around, Prado was there, three to five feet behind him. Artale pointed
the gun at him and said, “ ‘Get out of here.’ ” Prado appeared enraged and
said, “ ‘You’re not going to shoot me.’ ” After Artale said “ ‘If you come any
closer, I will,’ ” Prado stated “Fine,” “I’m going to F your stuff up.” Prado
backed up and went up the driveway, and Artale followed him after briefly
hesitating. Artale heard a hissing noise; as he came to the top of the
driveway, he saw Prado “crouched down,” “done slashing” the front tire of his
truck and “getting up from the [crouching] position.” Prado “took a couple big
steps . . . up the hill” and stopped at the truck’s rear tire. Prado bent over
again and was jabbing at the rear tire. Artale told him to stop as he held his
gun down in front of him. Artale testified that Prado “had his left foot in the
curb and he had his right knee on the curb and when [Artale] told him to
stop, that’s when he—he pivoted off his right foot and came up, and he had
the knife in his right hand and he came up like this [indicating] at [him].”
Then Artale “raised the gun and [he] fired.” Artale stated he thought Prado
“was coming right at [him],” he had nowhere to go, and “was out of options.”
Prado “dropped.” Artale testified he did not know whether Prado took any
steps toward him when he fired. Artale did not attempt to render aid. He
immediately went inside and called 911.2
An eyewitness, Jael K., saw the shooting. He had parked his car
nearby and was looking for a friend’s house. As Jael stood on the sidewalk
looking at his phone, he was approached by a man later identified as Prado.
Prado seemed “a little off” and “pissed off,” and he said to Jael, “ ‘Tell them
2 Artale’s 911 call was played for the jury. Artale told the operator he
“just had to shoot somebody that pulled a knife on [him]” and asked for an
ambulance.
4
that I did it.’ ” Prado continued walking up the hill to the north, and Jael
walked southward down the hill. Jael then heard what sounded like someone
puncturing a tire and air escaping. Jael turned around and saw Prado with
what looked like a knife in hand kneeling or squatting by a truck, puncturing
the truck’s tire. Jael saw him quickly look over his right shoulder and then
start running up the sidewalk, parallel to and in the direction of the back of
the truck and away from the shooter. A man “pop[ped] out on the sidewalk”
and “went into a shooter’s stance” with his feet planted and his arms raised
in front of him, parallel to the ground. The shooter emerged from an area of
the bushes by the sidewalk. Jael “heard a loud bang” which he assumed was
a gunshot because of the loud sound and because he saw “smoke coming from
[the shooter’s] hands.” Jael saw the back of the shooter and could also see his
arms raised because of the angle at which the shooter was standing. After he
heard the loud bang and saw smoke come out, Jael saw Prado fall “off of the
curb behind the truck.” Jael was able to see both Prado and Artale in his
field of vision and there were no obstructions of his view on the sidewalk.
Jael did not see Prado slash at the shooter with a weapon.
Jael hid behind a bush and called 911. A recording of the call was
played for the jury. Jael told the 911 operator that Prado was “slashing
someone’s tires and then a guy [Artale] came out of the house and shot
[Prado], while [Prado] was trying to run away.” Jael described the shooter as
wearing a white shirt and blue jean shorts.3 He said Artale shot Prado “in
the back.”
3 The day of the shooting, Artale was wearing a gray shirt with a large
company logo on the back, and long pants. The clothes were subsequently
shown to the jury.
5
At the scene, Jael told one police officer he was 70 to 80 feet from the
shooter and told another officer he was 20 feet away from the shooter. When
Jael met investigators at the scene for a subsequent interview, they
measured the distance from where Jael said he observed the shooting and
determined he was approximately 120 feet from the shooter and 145 feet from
where Prado fell. Jael acknowledged he previously told a police officer that
he saw Prado “ ‘kind of turn his back to try to run away’ ” before the gunshot
and that Prado “ ‘was getting ready to run away’ ” when the shot occurred.
Police arrived on the scene within minutes of the shooting and provided
first aid to Prado until emergency personnel arrived. Officers testified that
Prado was on his back, bleeding from wounds on his forehead and the side of
his head. An open box cutter lay on the ground approximately 24 inches from
his body.4
An officer rode with Prado in the ambulance to the hospital. Prado was
in a lot of pain, yelling and moaning. Prado said “his girl’s ex-boyfriend” shot
him and then said his name was “ ‘Mark Coblin.’ ” Prado also said his
girlfriend’s name was “ ‘Salis’ ” and then said, “ ‘He stabbed me.’ ” Prado said
he was trying to get his money from a safe inside the house, and he said,
“ ‘Debbie let me in.’ ” The officer asked Prado why he was shot, and Prado
said, “ ‘I told him I was going to kick his ass.’ ” Prado was unable to provide
4 A detective described it as a “folding box cutter style knife” or a
“commercial utility knife” measuring six inches, with a one-inch black or dark
metal blade.
6
more responses.5 Prado underwent surgery at the hospital and died on
October 3 after he was removed from life support.
Meanwhile, at the crime scene, officers collected the box cutter and a
shell casing found about six or seven feet in front of Artale’s truck. Officers
observed that the front passenger tire of the truck was flat; there was a one-
inch cut in the tire. Officers located Prado’s car parked on an adjacent street.
Artale complied with officers’ directions, identified himself as “ ‘the
shooter,’ ” voluntarily accompanied officers to the police station, and made a
statement to detectives before he was subsequently arrested. Portions of
Artale’s statement were played for the jury. Artale told officers he had gone
to Prado’s home to help him move, and Prado “started yelling at [him]” and
threatened him with a fold-out utility knife. After Artale left, he noticed
Prado was following him, “yelling at [him], trying to . . . ram into [him].” He
described retrieving his firearm when he got home and said:
“And then I didn’t see him. So I put [the gun] down on the
bench, and I walked up on the hill, and I looked down—I
saw him walking up the street, knife in hand. And before I
could even get down to the thing, to the—back to the
bottom of the carport, he was coming at me, and so I picked
up the firearm, and, and I pointed it at him. I said stop.
This is crazy, I said, go away. And, uh, he, uh, he, he
walked back up the driveway; he slashed a tire on the tr,
the green truck. So I followed him up, I saw him do that,
and I said stop it. And he went to go to the back, I said
stop. And he turned around, back at me, and I—I fired.
That’s it. I’m pretty shook up.”
5 Officers were unable to locate anyone named “Mark Coblin” and later
confirmed that Prado had not been stabbed and had not entered Artale’s
house that day.
7
Artale told police that Prado was “probably” using “dope.” But Artale
falsely denied using narcotics when the police asked about his own drug use.
Artale did not tell the police about any of the incidents of violence involving
Prado which he testified to at trial.
The prosecution’s forensic pathologist testified that Prado’s autopsy
revealed gunshot wound injuries to the head as well as a graze wound on his
right shoulder. The autopsy indicated that, with respect to the gunshot
wound of his head, the bullet entered at the bottom of Prado’s right ear and
exited through his forehead. The bullet traveled through Prado’s brain with
a slightly upward trajectory causing injuries to Prado’s right frontal and
temporal lobes and the basal ganglia. For the graze wound on his right
shoulder, the direction was from behind the body toward the front of the
body. The wounds were “consistent with having been caused by one bullet.”
Toxicology reports indicated Prado had used methamphetamine,
heroin, and cannabis. The methamphetamine levels were present in a
concentration “within a range that’s been associated with violent and
irrational behavior.”
The prosecution’s crime scene reconstructionist determined that the
evidence was consistent with a single shot being fired and consistent with the
deceased moving away from the shooter at the instant of the gunshot.6 He
testified that this model was consistent with Jael’s account that Prado was
“towards the back of the truck and when he was struck, [or] when the
6 The expert explained that if a body was static when shot in the head, it
would likely “just . . . fall down at that location,” and if it was moving, it
would fall “in the direction of body momentum.” Here, he considered the
eyewitness account placing the shooter on the portion of the sidewalk closest
to the house, Prado’s body’s location in the street, with his shoes near the
curb, and the three “defects” or wounds observed during the autopsy.
8
gunshot was heard, [and] he fell off the sidewalk and fell behind the truck.”
If Prado had not been moving at the time of the shot, he would expect to find
the body “right at the edge of the sidewalk and the curb.” He acknowledged,
however, that there was a possibility that Prado was facing Artale when the
decision to pull the trigger was formed and then turned prior to being shot,
because “it takes [between one quarter and one third of a second] from the
decision to pull the trigger, and a person can certainly change their position
in that time frame.”
In his defense, Artale called Prado’s former psychiatrist to testify that
Prado had previously been diagnosed with “possible bipolar disorder,” post-
traumatic stress disorder due to experiencing prior physical and emotional
abuse, and polysubstance abuse, including heroin and marijuana dependency
abuse. Over the course of his treatment, Prado exhibited psychosis and
demonstrated poor reality testing, visual and auditory hallucinations, and
extreme paranoia. Just weeks before his death, the psychiatrist wrote a
letter on Prado’s behalf diagnosing Prado with “a chronic psychiatric
disability” and indicating that Prado continued to intermittently abuse
heroin.
Artale also introduced evidence of Prado’s 2007 felony conviction for
assault with force likely to produce great bodily injury (§ 245, subd. (a)(1))
and misdemeanor conviction for inflicting injury on a partner (§ 273.5). In
addition, the jury heard excerpts of a police interview of Prado’s estranged
girlfriend, Shalise G., who described being beaten by Prado in a casino
parking lot approximately one month earlier and described a second
altercation two weeks earlier when Prado allegedly bit her arm. Shalise told
the detective that Prado “gets in this rage where he goes crazy and it’s, and
it’s for a moment, and then he snaps out of it, and he gets all crazy, but then
9
like an hour later, he is like your best friend again. He’ll be apologizing and
makes everything right.” She said “when [Prado] used to get in his rant and
raves, he’d threatened to murder me, to kill me.”
The defense called an independent expert to testify about reaction
times, firearms and the use of force, and crime reconstruction. The expert
testified that “from a 21-foot distance at a standing start, the average adult
male could close the gap and deliver a knife thrust in 1.5 seconds.” The
expert testified that the average person will react to an anticipated stimulus
within a quarter of a second. However, when a stimulus is not anticipated
but comes as a surprise, reaction time is generally about three times longer,
or three-quarters of a second. The expert testified that as a “rule of thumb,”
a quarter turn can be accomplished in a quarter second, and a half turn in a
half second, so if Prado was facing Artale, it would have taken him a quarter
or half a second to turn away. Presented with a hypothetical scenario, the
expert opined that if someone armed with a gun saw an assailant turn
toward them with a knife and they decide to shoot, and if then the assailant
suddenly, unanticipatedly, turns away, it would be “humanly impossible” to
prevent the shooter from firing because the turn takes a quarter second,
while the response takes three-quarters of a second. The expert opined it was
“very common” under such circumstances for a shooter to be surprised to
learn they had shot someone in the back. On cross-examination, the expert
admitted that the wound path was consistent with the prosecution’s theory
that Prado had turned to run away when he was shot.
In closing argument, the prosecutor argued that Artale killed Prado in
anger while Prado was running away and encouraged the jury to believe
Jael’s account over Artale’s. Defense counsel argued that Artale’s testimony
established that he was justified in killing Prado in self-defense. Jael’s
10
eyewitness account was “relatively unreliable” because he was inconsistent in
describing what happened, inaccurate in describing the shooter’s clothing,
and inconsistent in describing how close or far he was from Prado and Artale
at the time of the shooting.
After two days of deliberation, Juror No. 1 was discharged and replaced
with an alternate juror.7 The jury subsequently found Artale guilty of
murder in the second degree and found true all four of the firearm
allegations. (§§ 187, subd. (a), 12022.53, subd. (b)-(d), 12022.5, subd. (a).)
After denying Artale’s motions for a new trial and to reduce the judgment to
involuntary manslaughter, the trial court sentenced him to 15 years to life in
prison, plus 10 years for the firearm enhancement. (§ 12022.53, subd. (b).)
DISCUSSION
I.
The Trial Court Abused Its Discretion in Discharging a Holdout Juror
A. Additional Background
Prior to deliberations, the jury was instructed, “Do not use the Internet
or dictionary in any way in connection with this case either on your own or as
a group. Do not investigate the facts or the law or do any research regarding
this case either on your own or as a group. Do not conduct any tests or
experiments, visit the scene of any event involved in this case. If you happen
to pass by this particular street, do not stop or investigate.” (CALCRIM
No. 201.)
The jury deliberated for a full day on a Thursday before being excused
for the weekend. The jury resumed deliberations the following Monday at
9:00 a.m. At 2:25 p.m. that day, the foreperson submitted a note to the court
7 The circumstances surrounding the discharge of Juror No. 1 are
discussed in further detail post.
11
stating, “We have reached an impasse and need some guidance. All are in
agreement except Juror [No.] 1 who openly admitted to doing an experiment
on her own and doesn’t appear to be following the [c]ourt instruction. There
is concern that her mind was set when she walked in. We need some
guidance.”
With counsel present, the court noted two main issues: the impasse
and potential juror misconduct. The court indicated it intended to call in the
foreperson, Juror No. 9, to inquire. However, the bailiff reported that Juror
No. 1 was limping and appeared to be in pain, so the court called in Juror
No. 1, who reported that her “hip popped out of place” because she “sat in a
chair too long,” and that she had taken over-the-counter-pain medication that
“hasn’t done anything.” When asked, she confirmed twice that she was able
to continue deliberating and stated she would move and walk around to
relieve the pain.
The court then called in Juror No. 9. The court confirmed with the
foreperson that there was an “issue of an impasse.” The court stated it did
not want to talk about “the contents of the deliberations” and asked about the
experiment Juror No. 1 “openly admitted to doing.” Juror No. 9 responded
that, “She did it on her own,” and “[i]t wasn’t anything major, but it
concerned me because of her attitude toward reviewing and participating.”
With respect to the comment that “her mind was set when she walked in,”
Juror No. 9 stated that was based “[p]rimarily” on the juror’s “attitude, and
while we’re all reading through documents and looking at things, she’s
basically not doing that and not participating a lot in discussion. It’s minimal
and only if I approach her . . . mostly it’s me saying, ‘Okay. What do you
think?’ ” The court asked, “Does she respond?” Juror No. 9 replied, “She
does, but . . . there’s not really any discussion. It’s just, ‘This is it.’ [¶] I’m
12
not saying that she’s wrong in having made up her mind, and, you know,
we’ve actually talked about that, that she has that right as a juror, but it’s
just her lack of what I feel would be useful review and participation in the
process. I’m concerned about that.”
The court then reread the following portions of the jury instructions to
the entire jury:
“CALCRIM 200, duties of judge and jury: You must decide
what the facts are and it’s up to all of you and you alone to
decide what happened based only on the evidence that has
been presented to you in this trial.
“CALCRIM 201: Do not use the Internet or dictionary in
any way in connection with this case either on your own or
as a group. Do not investigate the facts or the law or do
any research on this case either on your own or as a group.
Do not conduct any tests or experiments or visit the scene
of any event involved in this case. If you happen to pass by
the scene, do not stop or investigate.”
The court then asked the jury, by show of hands, “Does anyone feel that
there are jurors who are not participating in the jury deliberation process?”
Nine of the 12 jurors raised their hands in the affirmative (Juror Nos. 3, 4, 5,
7, 8, 9, 10, 11, and 12).
The court asked, “Do you believe that there are any jurors on this panel
who have . . . made up his or her mind prior to the beginning of
deliberations?” Nine of the 12 jurors raised their hands in the affirmative
(Juror Nos. 2, 3, 4, 7, 8, 9, 10, 11, and 12).
The court then asked, “Do you have any knowledge or was there any
discussion about any juror or jurors who participated in an experiment in this
case?” Nine of the 12 jurors raised their hands in the affirmative (Juror
Nos. 3, 4, 5, 6, 7, 8, 9, 11, and 12).
13
The court indicated it intended to question each juror alone, beginning
with Juror No. 12. At a sidebar conference, defense counsel stated that no
juror should be removed, and objected to individually questioning the jurors,
stating, “what is the relevance . . . if three people feel that that juror is
participating and hasn’t done anything wrong?” The court proceeded to
question the jurors individually.8
Juror No. 12 stated she believed Juror No. 1 was not following the law
because “[s]he told us today that . . . over the weekend . . . she acted out
something.” Juror No. 12 stated that Juror No. 1 shared that information
with all of the other jurors and continued, “[W]e asked her if that affected her
decision and she did say no, but she’s also told us today that she has a firm
belief—I’m trying to say it without saying too much.” The court asked, “Well,
I want to know if in your opinion she’s not following the law.” Juror No. 12
stated she “believe[d] so,” and she further “believe[d]” Juror No. 1’s mind was
made up prior to the beginning of the deliberations. Juror No. 12 stated she
did not think the experiment “was a new type of evidence” and commented
that Juror No. 1 appeared to be in “a lot of pain” that day.9
Juror No. 11 stated she felt Juror No. 1 was not participating in the
jury deliberation process and felt she was “not following the jury
instructions.” Juror No. 1 had disclosed that she participated in an
experiment: “she tried to do demonstrations at home.” Juror No. 11 stated
8 The court did not question Juror No. 9, the foreperson who had written
the note, a second time.
9 The court used the term “new type of evidence” first when questioning
this juror. No explanation was provided on what this meant; as discussed
post, the term is used in case law discussing whether an experiment is
improper.
14
Juror No. 1’s disclosure did not affect her (Juror No. 11’s) decision-making in
any way.
Juror No. 10 stated she felt Juror No. 1 was not following the law and
“believe[d]” she made her mind up prior to the beginning of deliberations.
She stated that Juror No. 1 disclosed she had participated in an experiment,
but this did not affect her (Juror No. 10’s) decision-making at all.
Juror No. 8 stated she believed that one juror—a female she could
describe but could not identify by name or number—was not following the
law and believed she had made up her mind prior to the commencement of
deliberations. Juror No. 8 had “just heard something today about someone
having performed an experiment” and was “not even positive if it was the
same juror.” The information about the experiment did not have an impact
on Juror No. 8’s deliberations. Juror No. 8 commented that this juror seemed
to “not [be] listening to actually exactly what the law says about what’s
required to reach a verdict.”
Juror No. 7 stated that she “felt” Juror No. 1 was not following the law
and “appeared” to have made her mind up prior to the commencement of
deliberations. Juror No. 1 had disclosed she conducted an experiment, but
this disclosure did not affect Juror No. 7’s decision-making. Juror No. 7
stated she thought Juror No. 1 was “just being stubborn. She painted herself
into a corner, but—and then she told us about her experiment, so a
combination of all those things makes me think that’s just not cool.”
When asked if there was “any juror in the jury who [he] believe[d] is
not following the law,” Juror No. 6 responded that he “followed the
instructions to get to what [he] got.” He stated he “couldn’t tell” if there was
a juror in deliberations who seemed to have made up his or her mind prior to
15
the commencement of deliberations and was unaware of any discussion about
an experiment.
When Juror No. 5 was asked if he felt there was a juror who was not
following “the law,” he stated he felt there was a juror who was not following
“[y]our instructions,” but he did not know whether there was a juror who had
made up his or her mind prior to the commencement of deliberations. He was
aware that Juror No. 1 had done an experiment that “was mentioned” during
deliberations. Juror No. 5 stated he was not concerned about Juror No. 1’s
conduct and explained, “I think she’s just very firm in her belief, but no other
concerns other than that.”
Juror No. 4 stated he believed Juror No. 1 was not following the law
and seemed to have made up her mind prior to the commencement of
deliberations. He stated he “was told” that someone performed an
experiment and was aware of “[s]ome” details of that experiment, but the
experiment did not affect his decision-making. He stated, “I just feel that
Juror No. 1, one, had—probably had her mind made up before we started
deliberations and does not seem to be willing to follow what I believe the jury
instructions were.”
Juror No. 3 stated she believed Juror No. 1 was not following the law
and seemed to have made up her mind prior to the commencement of
deliberations. She stated Juror No. 1 “just mentioned that she—I guess her
brother or father or somebody had a truck and—about the same size as the
truck that was on the case and that she—.” Before the juror could continue,
the court interjected, “Without telling me any details, . . . she disclosed all
that to the jurors?” Juror No. 3 responded in the affirmative, but stated that
it did not affect her decision-making. Juror No. 3 then stated, “I don’t know if
it’s because she’s not feeling well, but I just get this vibe that it’s very
16
negative. And we’ve all been—you know, obviously we all work hard and
everything, and I just have that feeling that it’s like, ‘Okay. Well, whatever,’
because she kind of had a negative attitude when we first started.”
Juror No. 2 stated he believed Juror No. 1 was not following the law
“according to the rules” and seemed to have made up her mind prior to the
commencement of deliberations. He stated there was discussion about
“[s]ome measurements and an experiment” conducted by Juror No. 1 but that
did not affect his decision-making in any way.
The trial court then questioned Juror No. 1, asking if she had
conducted any experiments over the weekend. Juror No. 1 replied she had,
by herself, and that she “completely forgot about” the law prohibiting it and
she “wasn’t even thinking.” She stated she shared that with the jury and
that other jurors probably believed it was her who was not following the law.
The trial court stated, “I appreciate your honesty.” Juror No. 1 denied that
her mind was made up prior to deliberations. She stated “that one
instance”—“[t]he one about conducting experiments” was the only time she
did not follow the law. The trial court thanked her for her honesty.
Defense counsel stated Artale opposed excusing the witness, arguing
that Juror No. 1 was honest with the court and explained that the only
instance in which she did not follow the law was with respect to the
“experiment,” and other jurors indicated “it wasn’t significant in terms of
what was done.”
The trial court told the attorneys, “as soon as I heard that she had a
comparable truck—I mean, that in my mind goes well beyond ‘Don’t conduct
experiments.’ She actually set one up. So I’ve kind of withdrawn from that
original position that it was a minor versus major experiment.” The court
stated, “Well, the [c]ourt is going to discharge Juror No. 1. I feel that there is
17
substantial evidence to show that, with one exception where the juror didn’t
make up his mind one way or the other—Juror No. 6—all felt that Juror
No. 1 is not following the law. They all felt that Juror No. 1 was predisposed
and essentially did not participate in the jury deliberation process. And the
experiment—I’m not so sure it’s quote, new evidence, but it is concerning to
the [c]ourt that she would even go so far as to put up a truck and do some
measurements.”
Defense counsel reiterated Artale’s objection to excusing the juror. The
court asked the clerk to randomly choose one of the three alternate jurors,
and Alternate Juror No. 3 was selected to replace Juror No. 1. The court
then instructed the bailiff “to advise Juror No. 1 that she is excused by the
[c]ourt and to thank her for her service.”
The following day, the trial court explained this was only the second
time in 27 years that it had received “a jury note about potential misconduct
or refusal to deliberate,” and it inquired of each juror because it took the
matter seriously. The court then summarized its decision to remove Juror
No. 1 as follows:
“When I excused Juror No. 1 yesterday—I’m looking at the
note—I did so because I felt that she was not following the
law. When I inquired globally of the jurors, with the
exception of one juror who answered one question
affirmatively and one did not raise his hand, when I
questioned them further, it appeared that there might even
have been a language problem with the manner in which I
asked the question because he thought I was referring to
him. But, in any event, the jury was almost unanimous on
Juror No. 1 not following the law and also that her mind
was made up before the commencement of deliberations.
“I did have concerns about the experiment that was
obviously conducted, and as counsel could see, I was trying
to be very careful about not really talking about the
deliberative process but rather the conduct of the juror, but
18
it does seem as if she conducted an experiment with a truck
that was not identical but similar to the truck that was
involved in this case. And as you both know,
measurements and distances were very important in this
trial.
“Whether or not that experiment produces new evidence as
a matter of law, I don’t know. It’s a close call. But that
would have been the third reason that the [c]ourt would
show that there was basically substantial evidence that
this juror was not taking her oath seriously.”
The alternate juror was sworn in and the court instructed the jury to
begin deliberations anew. The newly reconstituted jury reached a guilty
verdict after approximately two and a half days of deliberations.
B. Applicable Law
“[S]ection 1089 sets forth the procedure for removing a sitting juror.”
(People v. Boyette (2002) 29 Cal.4th 381, 462.) It provides, in relevant part:
“If at any time, whether before or after the final submission of the case to the
jury, a juror dies or becomes ill, or upon other good cause shown to the court
is found to be unable to perform his or her duty, or if a juror requests a
discharge and good cause appears therefor, the court may order the juror to
be discharged . . . .” (§ 1089.) “Good cause exists to discharge a juror when
the juror loses his or her ability to render a fair and impartial verdict based
on the evidence presented at trial.” (People v. Barton (2020) 56 Cal.App.5th
496, 508 (Barton).) “ ‘A juror’s inability to perform his or her
functions . . . must appear in the record as a “demonstrable reality” and bias
may not be presumed.’ ” (People v. Beeler (1995) 9 Cal.4th 953, 975 (Beeler),
abrogated on grounds as stated in People v. Pearson (2013) 56 Cal.4th 393,
462.)
“Removing a juror is, of course, a serious matter. . . . While a trial
court has broad discretion to remove a juror for cause, it should exercise that
19
discretion with great care.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052,
fn. omitted (Barnwell).) “A court’s intervention may upset the delicate
balance of deliberations. The requirement of a unanimous criminal verdict is
an important safeguard, long recognized in American jurisprudence. This
safeguard rests on the premise that each individual juror must exercise his or
her own judgment in evaluating the case. The fact that other jurors may
disagree with a panel member’s conclusions, or find disagreement
frustrating, does not necessarily establish misconduct.” (People v. Allen and
Johnson (2011) 53 Cal.4th 60, 71 (Allen).) “[A] trial court should be wary of
relying on the opinions of jurors, rather than on its own consideration of
objective facts.” (Id. at p. 75.) “The court cannot substitute the opinions of
jurors for its own findings of fact.” (Ibid.)
This court’s “review of the decision to remove a seated juror is not
conducted under the typical abuse of discretion standard, but rather under
the ‘demonstrable reality’ test.” (People v. Fuiava (2012) 53 Cal.4th 622, 711
(Fuiava).) “ ‘[T]he demonstrable reality test entails a more comprehensive
and less deferential review. It requires a showing that the court as a trier of
fact did rely on evidence that, in light of the entire record, supports its
conclusion that [good cause for removing the juror] was established.’ ” (Id. at
p. 712.)
Under the demonstrable reality standard, the reviewing court “must be
confident that the trial court’s conclusion is manifestly supported by evidence
on which the court actually relied.” (Barnwell, supra, 41 Cal.4th at p. 1053.)
In reaching that conclusion, this court considers “not just the evidence itself,
but also the record of reasons the court provides.” (Ibid.) The “heightened”
and “more stringent” demonstrable reality standard “more fully reflects an
appellate court’s obligation to protect a defendant’s fundamental rights to due
20
process and to a fair trial by an unbiased jury.” (Id. at p. 1052.) Indeed, the
trial court’s discretion to discharge a juror for cause under section 1089 “is
‘bridled to the extent’ [that] the juror’s inability to perform his or her
functions must appear in the record as a ‘demonstrable reality,’ and ‘court[s]
must not presume the worst’ of a juror.” (People v. Bowers (2001)
87 Cal.App.4th 722, 729 (Bowers).) “[H]owever, even under the demonstrable
reality standard the reviewing court does not reweigh the persuasive value of
the evidence.” (Fuiava, supra, 53 Cal.4th at p. 714.) Accordingly, reviewing
courts must defer to the trial court’s assessments of a juror’s credibility
“based ‘on firsthand observations unavailable to us on appeal.’ ” (People v.
Powell (2018) 6 Cal.5th 136, 156; Barnwell, at p. 1053.)
C. Analysis
The trial court discharged Juror No. 1 because (1) she had conducted an
experiment in violation of the court’s instructions; and (2) she had prejudged
the case and refused to deliberate. “In taking the serious step of removing a
deliberating juror the court must be mindful of its duty to provide a record
that supports its decision by a demonstrable reality.” (Barnwell, supra,41 Cal.4th at p. 1053.) We conclude the record here fails to support the
court’s decision under this heightened standard of review.
1. Violation of the Court’s Instructions
“[T]he jury must follow the court’s instructions, ‘receiv[ing] as law what
is laid down as such by the court.’ ” (People v. Engelman (2002) 28 Cal.4th
436, 442 (Engelman); § 1126.) “A [juror’s] failure to follow the court’s
instructions is misconduct and a basis for dismissal.” (People v. Peterson
(2020) 10 Cal.5th 409, 472 (Peterson); accord, Engelman, at p. 443.) “A juror
commits misconduct if the juror conducts an independent investigation of the
facts [citation], brings outside evidence into the jury room [citation], injects
21
the juror’s own expertise into the deliberations [citation], or engages in an
experiment that produces new evidence.” (People v. Wilson (2008) 44 Cal.4th
758, 829.) But “[n]ot every jury experiment constitutes misconduct.
Improper experiments are those that allow the jury to discover new evidence
by delving into areas not examined during trial. The distinction between
proper and improper jury conduct turns on this difference. The jury may
weigh and evaluate the evidence it has received. It is entitled to scrutinize
that evidence, subjecting it to careful consideration by testing all reasonable
inferences. It may reexamine the evidence in a slightly different context as
long as that evaluation is within the ‘ “scope and purview of the evidence.” ’
[Citation.] What the jury cannot do is conduct a new investigation going
beyond the evidence admitted.” (People v. Collins (2010) 49 Cal.4th 175, 249
(Collins); see People v. Wismer (2017) 10 Cal.App.5th 1328, 1336 [the same
principles outlined in Collins apply “regardless of whether the new evidence
is generated outside the courthouse or inside the jury deliberation room”].)10
In this case, the jury was instructed not to conduct experiments, and
Juror No. 1 admitted she performed some type of experiment over the
weekend and then discussed it with the jury. But the record is almost
completely devoid of any meaningful inquiry regarding the substance of the
experiment. (Engelman, supra, 28 Cal.4th at p. 444 [grounds for discharge
must appear in the record “ ‘as a “demonstrable reality” ’ ” “after reasonable
inquiry by the court”].) There is no clear indication what Juror No. 1 did or
what she disclosed to the jury after she did it. The case law makes clear that
10 The court stated it discharged Juror No. 1 for failing to “follow[] the
law,” apparently based on the juror performing an experiment. Other than
the juror failing to deliberate and prejudging the case, the court cited no
other basis for discharging the juror. We discuss these other grounds post,
and focus on the juror’s experiment in this section.
22
these types of details are critical to an appellate court’s evaluation of
allegations of juror misconduct.
In People v. Cooper (1979) 95 Cal.App.3d 844, 848-849 (Cooper), the
defendant was convicted of possession of heroin for sale after a police officer
saw him reach toward his waistband and throw a shiny object which turned
out to be a bag containing heroin onto a lawn. The defendant filed a motion
for new trial after he was convicted, alleging two incidents of juror
misconduct relevant here. First, a juror “drove her car by some pedestrians
and ‘estimated whether or not a person seated in a moving car could make
the observations testified to by the police officers’ from which she ‘concluded’
that the officers’ testimony was credible.” (Id. at p. 852.)11 Second, “the
jurors ‘reenacted’ defendant’s throwing of the plastic bag,” further confirming
the police officers’ testimony. (Ibid.) The Court of Appeal affirmed the denial
of defendant’s motion for new trial on the basis that no juror misconduct
occurred. (Id. at pp. 853-854.) The court found that the juror’s estimation of
distances and conclusion that the officers were credible were “mental
processes” that “are in no way objectively verifiable,” and the act of driving
her vehicle, which could be verified, “does not constitute misconduct.” (Id. at
11 The police officers were driving two to three miles per hour when they
observed the defendant throw the object. (Cooper, supra, 95 Cal.App.3d at
p. 848.)
23
p. 853.)12 With respect to the reenactment, the court stated that
“experiments by the jury are prohibited only where the result is the
production of ‘new’ evidence.” (Ibid.) Because one of the officers “had
demonstrated the manner in which defendant had thrown the contraband,”
the court concluded the experiment did not result in the generation of new
evidence and therefore did not constitute misconduct. (Id. at p. 854; see also
Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 461 [noting it was “not at
all clear that [juror’s] actions were an impermissible experiment and thus
misconduct” where the juror drove his car with one eye covered to assess his
vision because it “did not invade a new field but merely [was] an experiment
on an issue within the evidence, to wit, the ability of a one-eyed individual to
drive”].)
Similarly, in Collins, a juror went home and used his computer to
create a diagram of the trajectory of the bullet used to shoot the victim.
12 Because Cooper involved a motion for new trial, it was necessary for the
court to determine whether the proffered evidence could be considered
pursuant to Evidence Code section 1150. “Under Evidence Code
section 1150 . . . , a court cannot consider evidence of a juror’s subjective
reasoning process in deciding whether to grant a new trial based on
purported juror misconduct.” (Allen, supra, 53 Cal.4th at p. 75.) As our
Supreme Court recognized in Allen, Evidence Code section 1150’s “underlying
policy provides guidance” in reviewing challenges to the trial court’s
discharge of a sitting juror. (Allen, at p. 75.) We therefore limit our
consideration to the overt acts reflected in the testimony elicited by the court,
and not the subjective reasoning process of the jurors. (See Collins, supra,49 Cal.4th at p. 250 [declining to consider “juror opinion, conclusions drawn
by others about jurors’ states of mind or level of understanding, and the
particular significance jurors attached to the evidence at trial” because
“[t]hese were improper intrusions into the subjective reasoning process of the
jurors in violation of Evidence Code section 1150”].) We do not consider any
juror’s statements as to whether Juror No. 1’s experiment affected the jury’s
deliberations or decision-making.
24
(Collins, supra, 49 Cal.4th at pp. 237-238.) The juror said that he “ ‘worked
out height patterns and came up with the fact that anyone standing six feet
away from another person would have to just about be standing on a stool
two and a half feet high to get a downward trajectory through the back of the
skull of an individual . . . .’ ” (Id. at p. 237.) The juror explained that he had
relied on trial testimony regarding the defendant’s height and evidence of the
victim’s height obtained from the coroner’s report. (Id. at pp. 237, 253.) The
following day during deliberations, the juror staged a demonstration based on
his diagram to support his conclusions regarding the manner of killing and
the relative positions of the shooter and victim. (Id. at pp. 237-239, 252.)
Our Supreme Court held this was not juror misconduct because the juror’s
“individual contemplation of the evidence” while separated from the other
jurors did not introduce extraneous evidence into the jury deliberations. (Id.
at p. 256.) “Nor did [the juror’s] use of the computer to draw his diagram
elevate his actions to misconduct.” (Id. at p. 255.) The juror used his
computer only to “diagram the positions of the defendant and [the victim] in
order to visualize how [the victim] suffered his particular wound.” (Id. at
p. 252.) It was not an improper experiment because it did not “result[] in the
acquisition of any new facts” and instead “was simply his own permissible
thinking about the evidence received.” (Ibid.; see also Bormann v. Chevron
United States (1997) 56 Cal.App.4th 260, 263-264 [juror did not commit
misconduct in preparing a written summary of her thoughts at home and
bringing it into the jury room so long as “such notations are the product of the
juror’s own thought processes and the evidence, rather than extraneous
influences”].)
By contrast, in People v. Vigil (2011) 191 Cal.App.4th 1474, 1486
(Vigil), the Court of Appeal concluded a juror “crossed the line into
25
misconduct” by conducting an experiment at home to see how difficult it
would be for a right-handed person to raise a rifle and point it out the
window of a passenger seat of a vehicle. The juror performed the experiment
using a broomstick, and told other members of the jury it was unlikely the
defendant (who was driving) was unaware that the passenger was going to
shoot because of how the rifle would have to be maneuvered before shooting
out the window. (Id. at p. 1482.) The appellate court explained that the
“distinction [between proper and improper experiments] usually turns on
whether the juror’s investigation stayed within the parameters of admitted
evidence or created new evidence, which the injured party had no opportunity
to rebut or question.” (Id. at p. 1484.) The experiment in Vigil was improper
because it “ignored several variables that could have skewed the results”
including the characteristics of the interior of the vehicle and the height and
weight of the driver and shooter. (Id. at p. 1486.) The juror also assumed,
without evidentiary support, that the driver was right-handed. (Ibid.) “The
result of the experiment was then reported to the deliberating jurors as if it
were scientific confirmation of the juror’s views on a vital issue in the case.”
(Ibid.; see also People v. Castro (1986) 184 Cal.App.3d 849, 852-854 [juror
engaged in improper experiment by using binoculars at home to see if the
officer could see what he had testified to, and then reported his finding to
other jurors; there was no showing that the juror used the same type of
binoculars as the officer, or that the lighting conditions and distances
involved were similar to the conditions facing the officer].)
These cases demonstrate we are missing the type of information needed
to conclude Juror No. 1 engaged in an improper experiment justifying the
court’s decision to discharge her. Juror No. 1 acknowledged she had
conducted an experiment and stated she “completely forgot about” the law
26
prohibiting it and she “wasn’t even thinking.” She stated “that one
instance”—“[t]he one about conducting experiments”—was the only time she
did not follow the law. The other jurors described the experiment in very
general terms: “she tried to do demonstrations at home”; “she acted out
something”; she “mentioned . . . her brother or father or somebody had a
truck . . . about the same size as the truck that was on the case”; and there
was discussion about “[s]ome measurements and an experiment” conducted
by Juror No. 1. The court concluded from these statements that Juror No. 1
“put up a truck and [did] some measurements” or “conducted an experiment
with a truck that was not identical but similar to the truck that was involved
in this case.” In explaining why it discharged the juror, the court emphasized
that “measurements and distances were very important in this trial.”
However, “[n]ot every jury experiment constitutes misconduct.” (Collins,
supra, 49 Cal.4th at p. 249.) It is not clear from the record how the truck was
used (if at all), what measurements were taken (if any), or how those
measurements were used (if at all). Similarly, it is not clear what “distances”
(if any) were used in the experiment; the trial court mentioned the
importance of “distances” in the trial, but none of the jurors said the
experiment involved “distances.”13 In any event, there is no categorical
prohibition on performing an experiment that involves measurements,
distances, or other types of estimations so long as they are not based on
extrinsic evidence. (See, e.g., Cooper, supra, 95 Cal.App.3d at pp. 852-853 [no
juror misconduct occurred where juror drove her car by some pedestrians and
13 As summarized ante, an eyewitness testified about his observations of
the shooting from various distances, and the victim’s location near a truck
prior to the shooting. We do not know whether Juror No. 1’s experiment was
intended to replicate some or all aspects of this testimony, or something else
entirely.
27
estimated whether officers driving at a slow speed could observe what they
had testified to at trial]; Collins, at pp. 237-238 [no misconduct where juror
“ ‘worked out height patterns’ ” and used his home computer to create a
diagram of the trajectory of the bullet used to shoot the victim].) The trial
court here did not determine whether the juror conducted an experiment that
resulted in the generation of new evidence, or whether the juror shared any
extrinsic evidence with other members of the jury. We cannot tell whether
Juror No. 1 performed a permissible type of experiment as in Cooper and
Collins, or an impermissible one as in Vigil and Castro. It is impossible to
discern whether “the juror’s investigation stayed within the parameters of
admitted evidence or created new evidence, which the injured party had no
opportunity to rebut or question.” (Vigil, supra, 191 Cal.App.4th at p. 1484.)
We recognize the challenges facing trial courts responding to
allegations of juror misconduct. As our Supreme Court explained: “A trial
court made aware of . . . possible misconduct occurring during the jury’s
deliberations[] is placed on a course that is fraught with the risk of reversible
error at each fork in the road. [Citation] The court must first decide whether
the information before the court warrants any investigation into the matter.
[Citation] If some inquiry is called for, the trial court must take care not to
conduct an investigation that is too cursory [citation], but the court also must
not intrude too deeply into the jury’s deliberative process in order to avoid
invading the sanctity of the deliberations or creating a coercive effect on
those deliberations [citation]. After having completed an adequate (but not
overly invasive) inquiry into the misconduct issue, the trial court must then
decide whether, under section 1089, there is ‘good cause’ to excuse the juror
at issue. The court at this final fork might err in declining to dismiss a juror
28
who should have been excused [citation] or excusing a juror who should have
been retained.” (Fuiava, supra, 53 Cal.4th 622 at pp. 710-711, fn. omitted.)
The court here was legitimately concerned with maintaining the
secrecy surrounding the jury’s deliberations. But “such secrecy may give way
to reasonable inquiry by the court when it receives an allegation that a
deliberating juror has committed misconduct.” (Engelman, supra, 28 Cal.4th
at p. 443.) Having decided it was necessary to inquire of the jurors, it was
incumbent on the trial court to create a sufficient record to support its
decision to discharge Juror No. 1. (Barnwell, supra, 41 Cal.4th at pp. 1052-
1053 [decision must be supported “by a demonstrable reality”].) In the course
of investigating whether good cause existed to replace Juror No. 1, the trial
court could have asked what experiment she conducted—and whether she
communicated what she had done to other members of the jury—without
asking about the jury’s thought processes. But that did not occur. Without
even the most basic facts about the nature of Juror No. 1’s experiment, the
record here is inadequate.
We further recognize that “[i]n appropriate circumstances a trial judge
may conclude, based on a juror’s willful failure to follow an instruction, that
the juror will not follow other instructions and is therefore unable to perform
his or her duty as a juror.” (People v. Ledesma (2006) 39 Cal.4th 641, 738; see
Fuiava, supra, 53 Cal.4th at p. 711 [juror who understands the court’s
instructions but cannot follow them because of personal bias is properly
discharged under section 1089, even without further inquiry into the juror’s
state of mind].) But the court did not make this type of finding here. It
declined to determine whether the experiment constituted “new evidence,”
and it similarly did not find that the juror’s actions cast doubt on her ability
29
to follow the court’s instructions if kept on the jury.14 (Cf. Peterson, supra,
10 Cal.5th at p. 473 [trial court did not abuse its discretion in discharging
juror who repeatedly “had violated the instruction not to discuss the case and
could not be trusted to refrain from doing so in the future”].) We cannot
make implied findings here to support the court’s decision. (See People v.
Henderson (2021) 68 Cal.App.5th 709, 735 [“because a reviewing court
[applying the demonstrable reality test] must consider ‘the record of the
reasons the trial court provides,’ reviewing courts cannot imply findings the
trial court did not expressly make”].) The scant evidence on this record fails
to establish a demonstrable reality that Juror No. 1 was unable to render a
fair and impartial verdict based on the evidence presented at trial. (Beeler,
supra, 9 Cal.4th at p. 975; Barton, supra, 56 Cal.App.5th at p. 508.)
2. Prejudging the Facts and Refusing to Deliberate
A trial court properly may dismiss a juror based on the juror’s
“unwillingness to engage in the deliberative process.” (People v. Cleveland
(2001) 25 Cal.4th 466, 485 (Cleveland); see also People v. Lomax (2010)
49 Cal.4th 530, 589 [“A refusal to deliberate is misconduct.”].) “A juror who
expresses a fixed conclusion at the start of deliberations and rebuffs attempts
to engage him or her in the discussion of other points of view raised by other
jurors has refused to deliberate, and properly may be discharged.” (People v.
Alexander (2010) 49 Cal.4th 846, 926.) On the other hand, “[t]he
circumstance that a juror does not deliberate well or relies upon faulty logic
or analysis does not constitute a refusal to deliberate and is not a ground for
discharge. Similarly, the circumstance that a juror disagrees with the
14 Instead, the trial court thanked Juror No. 1 for her “honesty” in
acknowledging she had conducted one experiment, without ever obtaining
pertinent information on what that experiment entailed.
30
majority of the jury as to what the evidence shows, or how the law should be
applied to the facts, or the manner in which deliberations should be
conducted does not constitute a refusal to deliberate and is not a ground for
discharge.” (Cleveland, at p. 485.)
“ ‘The inquiry [into possible discharge of a juror] should focus upon the
conduct of the jurors, rather than upon the content of the deliberations.’ ”
(Barnwell, supra, 41 Cal.4th at p. 1054, italics added.) But here, the trial
court expressly relied on the opinions and beliefs of the jurors without
making its own findings of fact based on Juror No. 1’s alleged conduct. The
trial court summarily concluded that the jurors “all felt that Juror No. 1 was
predisposed and essentially did not participate in the jury deliberation
process,” and that “the jury was almost unanimous . . . that her mind was
made up before the commencement of deliberations.” As our Supreme Court
has cautioned, “a trial court should be wary of relying on the opinions of
jurors, rather than on its own consideration of objective facts.” (Allen, supra,
53 Cal.4th at p. 75.) “The court cannot substitute the opinions of jurors for
its own findings of fact” regarding a juror’s alleged misconduct. (Ibid.)
Moreover, the record does not support the conclusion that Juror No. 1
prejudged the case or refused to participate in deliberations. Substantial
evidence in the record instead establishes that Juror No. 1 merely disagreed
with other jurors about the weight of the evidence and the outcome of the
case. The allegation that Juror No. 1’s “mind was set when she walked in”
was only made when the jury had reached an impasse, with all in agreement
except Juror No. 1. One juror complained that Juror No. 1 had “kind of had a
negative attitude when we first started,” and another stated that she was
“just very firm in her belief, but [had] no other concerns other than that.”
Only two jurors, numbers 9 and 11, accused Juror No. 1 of not participating
31
in jury deliberations. Juror No. 11 provided no explanation to justify that
belief, and Juror No. 9, when pressed, acknowledged that Juror No. 1 was
participating, just “not . . . a lot,” and further acknowledged Juror No. 1
would respond to her questions, but without “really any discussion.”
None of these statements is sufficient to support the court’s decision to
discharge Juror No. 1. “The evidence regarding Juror No. [1’s] manner of
deliberating does not state a proper ground for her discharge.” (People v.
Armstrong (2016) 1 Cal.5th 432, 453.) Even assuming Juror No. 1 had firm
beliefs, an unwillingness “to engage in further discussion, by itself, does not
show as a demonstrable reality that she was failing to deliberate. It is not
uncommon, or grounds for discharge, ‘for a juror (or jurors) in a trial to come
to a conclusion about the strength of a prosecution’s case early in the
deliberative process and then refuse to change his or her mind despite the
persuasive powers of the remaining jurors.’ ” (Armstrong, at p. 453; see
Engelman, supra, 28 Cal.4th at p. 446 [“[t]he court may not discharge a juror
for failing to agree with the majority of other jurors or for persisting in
expressing doubts about the sufficiency of the evidence in support of the
majority view”].) Juror No. 1 deliberated with the jury for nearly two days.
As the Cleveland court recognized, “[a] juror who has participated in
deliberations for a reasonable period of time may not be discharged for
refusing to deliberate, simply because the juror expresses the belief that
further discussion will not alter his or her views.” (Cleveland, supra,25 Cal.4th at p. 485.) It is apparent some jurors were frustrated by Juror
No. 1’s limited feedback in response to their questions, but our Supreme
Court has held that grounds to discharge a juror do not exist because the
juror “relies upon faulty logic or analysis” (Cleveland, at p. 485), or because
the juror does not “deliberate well or skillfully” (Engelman, at p. 446).
32
“Simply because the other jurors were not satisfied with her opinion and the
quality of her reasoning does not support a finding that she was refusing to
deliberate.” (Barton, supra, 56 Cal.App.5th at pp. 512-513.) In sum, the
record here does not establish to a demonstrable reality that Juror No. 1 had
prejudged the case or was refusing to continue deliberating.
3. The Error Requires Reversal
We have concluded that, applying the heightened “demonstrable
reality” standard, the record does not support the trial court’s decision to
discharge Juror No. 1. We further conclude the error requires reversal.
We acknowledge that this is not a situation where a verdict was
reached immediately after a juror was discharged and an alternate was
sworn in. (See Bowers, supra, 87 Cal.App.4th at p. 736 [observing that “after
less than one day of deliberation the new jury returned verdicts of guilty”];
Barton, supra, 56 Cal.App.5th at p. 516 [defendant was convicted within
hours after juror was erroneously discharged for failing to deliberate and the
alternate juror joined the jury].) After the replacement juror was sworn in,
the jury deliberated anew and reached a verdict after approximately two and
a half days of deliberations. Nonetheless, it is apparent from the record—
including the foreperson’s note, the reported impasse, and the jurors’
responses to the court’s inquiries—that the jurors were already in agreement
with the exception of Juror No. 1. Removing Juror No. 1 when her lone
dissenting opinion was preventing a verdict, without establishing that she
was actually unable to perform her duties, constitutes prejudicial error and
warrants reversal. (Bowers, at pp. 734-736 [discharge of holdout juror who
participated in jury discussions “to some extent” was error requiring reversal
under People v. Watson (1956) 46 Cal.2d 818, 836]; see also Allen, supra,53 Cal.4th at p. 65 [analyzing erroneous discharge of juror under section 1089
33
as state law error, “obviat[ing] the need to decide whether [the juror’s]
removal also violated defendants’ constitutional rights”].) The record here
establishes that “had [Juror No. 1] remained on the jury, it is reasonably
probable the case would have ended in a mistrial, a more favorable result for
[Artale] than conviction.” (Barton, at p. 516.) Because the court’s erroneous
discharge of Juror No. 1 was prejudicial, we reverse the judgment. (Id. at
pp. 511-512 [erroneous discharge of holdout juror for allegedly failing to
deliberate warrants reversal].)
II.
Substantial Evidence Supports the Murder Conviction
Artale claims insufficient evidence supports his conviction for second
degree murder because the prosecution failed to prove that Artale did not act
in self-defense. We disagree.
“ ‘On appeal we review the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).) As a
reviewing court, we “presume in support of the judgment the existence of
every fact the jury could reasonably have deduced from the evidence,” and we
do not reweigh evidence or reevaluate a witness’s credibility. (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) Reversal is not warranted unless it
appears “ ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297,
331.) “ ‘Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.’ ” (People v. Brooks (2017)
3 Cal.5th 1, 57.)
34
Second degree murder is “the unlawful killing of a human being with
malice aforethought but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction of first
degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) “Malice may
be either express (as when a defendant manifests a deliberate intention to
take away the life of a fellow creature) or implied.” (Cravens, supra,53 Cal.4th at p. 507.) “ ‘Malice is implied when the killing is proximately
caused by “ ‘an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with conscious disregard
for life.’ ” ’ ” (People v. Smith (2018) 4 Cal.5th 1134, 1165.)
There are two types of self-defense under California law: “perfect” self-
defense and “imperfect” self-defense. (People v. Randle (2005) 35 Cal.4th 987,
994 (Randle), overruled on other grounds in People v. Chun (2009) 45 Cal.4th
1172, 1198-1199.) “For perfect self-defense, one must actually and
reasonably believe in the necessity of defending oneself from imminent
danger of death or great bodily injury.” (Randle, at p. 994.) “Imperfect self-
defense is the killing of another human being under the actual but
unreasonable belief that the killer was in imminent danger of death or great
bodily injury.” (People v. Booker (2011) 51 Cal.4th 141, 182, italics added.)
“A killing committed in perfect self-defense is neither murder nor
manslaughter; it is justifiable homicide.” (Randle, at p. 994.) “Imperfect self-
defense is not a complete defense to a killing, but negates the malice element
and reduces the offense to voluntary manslaughter. [Citations.] ‘The
subjective elements of [perfect] self-defense and imperfect self-defense are
identical. Under each theory, the [defendant] must actually believe in the
need to defend . . . against imminent peril to life or great bodily injury.’ ”
35
(People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 744; accord, People v.
Elmore (2014) 59 Cal.4th 121, 133-134.) The prosecution has the burden to
prove beyond a reasonable doubt that the defendant did not act in self-
defense. (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168.) However, it
is up to the jury to decide whether self-defense is established. (People v.
Vasquez (2006) 136 Cal.App.4th 1176, 1179 [“It was for the jury sitting as the
trier of fact to decide whether appellant actually feared serious injury or
death.”].)
There is sufficient evidence to support the jury’s conclusion that Artale
killed with malice. The jury reasonably could credit the testimony that
Artale was angry with Prado after the two of them got into a fight at
Annette’s house. Artale said “ ‘Fuck this shit,’ ” and pulled away quickly in
his truck. He drove home, went inside to retrieve a gun, then waited for
Prado to arrive. Artale sprung out from the bushes as Prado was puncturing
a tire on Artale’s vehicle. Artale assumed a shooter’s stance, aimed directly
at Prado, and fired at him as Prado was trying to run away. This evidence
supports the reasonable inference that Artale intentionally shot Prado, either
with an intent to kill or with conscious disregard for life. (See People v.
Smith (2005) 37 Cal.4th 733, 742 [“the act of purposefully firing a lethal
weapon at another human being at close range, without legal excuse,
generally gives rise to an inference that the shooter acted with express
malice” and intended to kill]; People v. Lashley (1991) 1 Cal.App.4th 938,
945 [“[t]he very act of firing a .22-caliber rifle toward the victim at a range
and in a manner that could have inflicted a mortal wound had the bullet been
on target is sufficient to support an inference of intent to kill”]; see also
People v. Boatman (2013) 221 Cal.App.4th 1253, 1263 [“The jury could have
easily concluded that pointing a loaded gun at someone and pulling the
36
hammer back is an intentional act, the natural consequences of which are
dangerous to human life, and that defendant deliberately did so with
knowledge of such danger and with conscious disregard for [the victim’s]
life”].)
Artale does not deny that he shot Prado. Instead, he claims he shot
Prado in self-defense: he was afraid Prado was going to attack him, he felt he
“was out of options,” and he only fired when he thought Prado “was coming
right at [him].”15 He highlights the victim’s “extensive history of mental
illness, drug addiction, and violence,” reargues the inferences that can be
drawn from the experts’ testimony, and contends the single eyewitness’s
testimony was not reliable and he “could not[] speak to what was in [Artale’s]
mind at the moment of the shooting.”16 But the jury was not required to
accept Artale’s version of events or draw inferences in his favor. “ ‘If the
circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ ” (People v. Westerfield
(2019) 6 Cal.5th 632, 713.) And the testimony of a single witness is sufficient
to sustain a jury’s verdict, “[e]ven when there is a significant amount of
15 Artale does not specify which theory of self-defense he is relying on in
his briefing. His opening brief appears to be based on perfect self-defense,
and he only makes an argument about imperfect self-defense in his reply.
Despite the arguable forfeiture, and because there is some overlap between
the two, we exercise our discretion to address both self-defense theories.
16 Artale points out that the prosecution’s experts could not definitively
say whether Prado was facing Artale or his back was turned, and contends
that Jael’s testimony was subject to dispute or interpretation as there were
conflicts regarding how close he was to the men, how much he could have
seen, and inconsistencies in his statements. He also argues that Prado, not
Artale, was enraged.
37
countervailing evidence” (Barnwell, supra, 41 Cal.4th at p. 1052), as long as
the testimony is not “physically impossible or inherently improbable” (People
v. Elliott (2012) 53 Cal.4th 535, 585). In the present case, the jury reasonably
could credit the eyewitness’s testimony that Artale shot Prado in the back as
he was running away.
The jury was presented with sufficient evidence, which it could
reasonably credit, showing Artale did not act in self-defense. For perfect self-
defense, Artale must have actually and reasonably believed that he was in
imminent danger of death or great bodily injury. (Randle, supra, 35 Cal.4th
at p. 994.) Similarly, imperfect self-defense can only be established if Artale
“actually believe[d] in the need to defend himself against imminent peril to
life or great bodily injury.” (People v. Viramontes (2001) 93 Cal.App.4th 1256,
1262.) Artale’s self-serving testimony that he was afraid and “out of options”
is not dispositive. (In re Christian S. (1994) 7 Cal.4th 768, 783 [“[W]hether
the defendant actually held the required belief is to be determined by the
trier of fact based on all the relevant facts. It is not required to accept the
defendant’s bare assertion of such a fear.”].) The jury heard evidence that
Artale was upset with Prado over the failed move. After driving home and
retrieving his gun, Artale initially aimed his weapon at Prado while in his
driveway and told him to “[g]et out of here.” Prado backed up and left the
driveway at that point, but Artale followed him. Artale admitted he followed
Prado, and then shot him after witnessing Prado puncturing his truck tire.
An eyewitness testified that Prado “pop[ped] out on the sidewalk” and “went
into a shooter’s stance” and then shot Prado in the back while he was running
38
away.17 The eyewitness further testified he never saw Prado attempt to use
his knife on Artale. Artale did not tell the police that he was afraid of Prado
because of his mental health issues or history of violence, as he contended at
trial. Instead, he tried to minimize their relationship and lied to the police
about his own drug use. Even though he claimed he was afraid because
Prado was following him as he drove off after their argument, he never called
911 or informed his family of any purported risk. Based on this record, the
jury could conclude that Artale’s testimony lacked credibility and that he shot
Prado because he was angry—not because he actually believed he was in
imminent danger of death or serious bodily injury. (People v. Nguyen (2015)
61 Cal.4th 1015, 1045 (Nguyen) [“ ‘[S]elf-defense is not available when a
person does not act out of fear alone, but out of fear and a desire to harm the
attacker.’ ”].)18 Even assuming Artale actually believed he was in imminent
danger, the jury could conclude he used more force than reasonably necessary
under the circumstances. (See People v. Hardin (2000) 85 Cal.App.4th 625,
630 [self-defense is not available where defendant exceeds the amount of
force necessary in view of the nature of the attack].) In addition to the
eyewitness account, the forensic evidence was consistent with the
prosecution’s theory that Artale shot Prado in the back as Prado tried to run
17 Although Artale contends there were disputes as to what the witness
“could or could not have seen,” the court arranged for the jurors to visit the
crime scene and see for themselves where the eyewitness testified he was
standing when he observed the shooting.
18 In Nguyen, our Supreme Court cited the following standard with
approval: “ ‘The party killing is not precluded from feeling anger or other
emotions save and except fear; however, those other emotions cannot be
causal factors in his decision to use deadly force. If they are, the homicide
cannot be justified on a theory of self-defense.’ ” (Nguyen, supra, 61 Cal.4th
at p. 1045.)
39
away. The medical examiner opined that the bullet grazed the top of Prado’s
shoulder, going “from the back towards the front of the body,” and then
entered Prado’s head near his right ear and exited through Prado’s forehead.
Although Artale’s expert offered an alternative theory, the expert
acknowledged that the wound path was consistent with the prosecution’s
theory that Prado had turned to run away when Artale shot him. When
faced with the divergent accounts of what happened during the shooting, the
jury could reasonably reject Artale’s claim that he acted out of fear. We do
not reweigh the evidence or resolve issues of credibility on appeal.
In sum, there was substantial evidence to negate both perfect and
imperfect self-defense. The jury reasonably could conclude that no
reasonable person would have believed that he was in imminent danger of
death or great bodily injury, and that Artale was not acting out of actual but
unreasonable fear. Reviewing the record in the light most favorable to the
judgment, we conclude substantial evidence, including physical evidence and
eyewitness testimony, supports Artale’s conviction for second degree murder.
Because we conclude sufficient evidence supports Artale’s conviction, there is
no double jeopardy bar to retrial of the case (People v. Hernandez (2003)
30 Cal.4th 1, 6), and it is unnecessary for us to consider Artale’s remaining
claims on appeal.
40
DISPOSITION
The judgment is reversed. The double jeopardy clauses of the
California and federal Constitutions do not bar retrial of the case.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
O’ROURKE, J.
41