People v. Cheatham CA2/3

Filed 12/10/20 P. v. Cheatham CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B294173
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA096910)
v.
SHANAY CHEATHAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Amy N. Carter, Judge. Reversed and
remanded with direction.
Michelle T. LiVecchi-Raufi, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
During deliberations in the trial of Shanay Cheatham for
assault, the trial court dismissed a juror for misconduct and
replaced him with an alternate. The reconstituted jury found
Cheatham guilty as charged. On appeal, Cheatham contends,
among other things, that the trial court erred by discharging the
juror. We agree and reverse the judgment.1
BACKGROUND
I. The assaults
The evidence at trial was that Bong Thi Truong and Kevin
Tran were working at a nail salon. Cheatham asked Tran to fix
her nails, asserting that he had done them incorrectly the week
before. When he refused, they argued. Tran tried to call the
police, but Cheatham grabbed the phone and threw it. Cheatham
punched Tran and grabbed Troung by the hair, pushing her face
against the wall. In her defense, Cheatham admitted punching
Tran because she felt threatened when he walked towards her,
waving his hands and yelling. Cheatham denied grabbing
Troung by the hair or pushing her against a wall.
II. Jury deliberations
Before the jury retired for deliberations late on September
19, 2018, the trial court instructed jurors not to talk about the
case with anyone, including their “spouse or other family or
friends,” and not to discuss deliberations with anyone. The next
day, after a full day of deliberations, the trial court was informed
that Juror No. 3, while standing near the public elevator, had
been overheard telling someone on his cell phone that the jury
1 Becausewe reverse on this ground, we need not reach her
other arguments.
2
was definitely going to hang. The next morning, the trial court
asked Juror No. 3 about the incident. The juror said his wife had
asked if he was coming home, and he replied that it looked like a
hung jury.2
The trial court then asked the other jurors in numerical
order whether they had overheard any conversation that would
impact their ability to be fair and impartial. Only Jurors Nos. 11
and 12 overheard the comment. Both said it would not interfere
with their ability to be fair and impartial.
However, while being asked about the call, Juror No. 4
volunteered that there was “a lot of dissension in the room” and
called Juror No. 3 an “obstructionist,” meaning he had a closed
mind and was challenging others in a way that shut down
conversation and the deliberative process. Juror No. 3 seemed to
be carrying a grudge and had said, “This is crazy. This is not
worth doing” and these “people are never going to change their
mind. It’s over with. Let’s go.” Juror No. 4 clarified that what
was happening was more akin to a difference of opinion than a
refusal to deliberate.
Juror No. 5 said that before they had gone through the
deliberation process, Juror No. 3 appeared to have made up his
mind and was in a rush to finish. Juror No. 3 cut others off and
did not give others with a different opinion a chance to speak.
Juror No. 6 agreed that Juror No. 3 had expressed a strong
opinion about the verdict before the deliberative process had
taken place. Juror No. 3 also sat on the couch rather than at the
2 JurorNo. 3 also told the trial court that due to an out-of-
state work commitment he would not attend deliberations if they
went into the next week.
3
table with the rest of the jurors. Still, Juror No. 3 expressed his
thoughts and ideas. Juror No. 6 would not say that Juror No. 3
was refusing to deliberate but instead was contributing to the
conversation.
Juror No. 7 had seen nothing from Juror No. 3 constituting
a refusal to deliberate or to indicate he had made up his mind
before the deliberative process began.
According to Juror No. 8, Juror No. 3 stated he had made
up his mind before entering the jury room. Juror No. 3 initially
resisted deliberating but became more willing to participate as
the day progressed. Although Juror No. 3 talked over others, he
was not preventing meaningful discussion.
Juror No. 9 agreed that Juror No. 3 said he had made up
his mind during deliberations. Although Juror No. 3 talked over
others, he did not interfere with others’ ability to participate.
Juror No. 10 reported that Juror No. 3 said he had made up
his mind before leaving the courtroom and would not deliberate.
Juror No. 3 felt like race was playing a factor and insinuated that
Black jurors would vote one way and the others another way.
Juror No. 3 also talked about another case in which he had been
a juror and how he felt that certain jurors should not be part of
the process. His behavior made Juror No. 10 uncomfortable,
interfering with others’ ability to participate in his view. At the
end of the day, Juror No. 3 got up from the table, sat on the sofa,
and said he would not participate.
Juror No. 11 said that Juror No. 3 was rushing the process,
told others to hurry up, and said that he had already formed an
opinion and so should they. He interfered with others’ ability to
participate by interrupting. This behavior notwithstanding,
Juror No. 11 did not feel less able to participate. Although others
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were frustrated and briefly shut down, they would then continue
deliberating.
Juror No. 12 said that Juror No. 3 stood to the side and
interjected from time to time but had not impeded anyone from
deliberating and had not refused to participate. When Juror No.
3 commented that minds could not be changed, others explained
that they were just discussing the facts.
When the questioning of the jurors concluded, the
prosecutor argued that Juror No. 3 should be dismissed, and
defense counsel argued that he should remain on the jury. The
trial court discharged Juror No. 3 and replaced him with an
alternate. In excusing the juror, the trial court referred to Juror
No. 10, who said that Juror No. 3’s behavior made her
uncomfortable and less able to participate. Juror No. 3 brought
race into the discussions and had said that certain jurors should
not be part of the process. To the trial court, it appeared that
Juror No. 3 tried to interfere with the deliberative process and to
suppress the free exchange of ideas. He had separated himself by
sitting apart from the other jurors. Further, by telling his wife
that the jury would hang, Juror No. 3 violated the trial court’s
instruction not to discuss the case with anyone.
The trial court concluded, “So overall this juror has ignored
the court’s instructions, has made every [effort] to suppress the
participation in deliberations of other jurors, has brought into the
deliberation process a case that he sat on from some other jury.
[¶] And I find that all of these things taken together rise to the
level of jury misconduct and this court can have no confidence
that this juror will follow instructions and participate
appropriately without suppressing the other juror’s ability to
participate in the deliberative process.”
5
The trial court discharged Juror No. 3 and replaced him
with an alternate.
The reconstituted jury found Cheatham guilty of assault
with force likely to produce great bodily injury to Tran and
Troung (Pen. Code,3 § 245, subd. (a)(4); counts 1 & 2). The jury
found the great bodily injury enhancement under section
12022.7, subdivision (a) true as to count 1. On November 5, 2018,
the trial court sentenced Cheatham to three years on count 1,
stayed the section 12022.7 enhancement, and imposed a
concurrent sentence on count 2.
DISCUSSION
A court has the discretion to discharge a juror who is
unable to perform his duty or upon other good cause shown.
(§ 1089; People v. Peterson (2020) 10 Cal.5th 409, 472.) Failing to
follow the trial court’s instructions is grounds for dismissal.
(People v. Williams (2015) 61 Cal.4th 1244, 1262.) Refusing to
deliberate is also grounds for dismissal. (People v. Cleveland
(2001) 25 Cal.4th 466, 475.) “Examples of refusal to deliberate
include, but are not limited to, expressing a fixed conclusion at
the beginning of deliberations and refusing to consider other
points of view, refusing to speak to other jurors, and attempting
to separate oneself physically from the remainder of the jury.”
(Id. at p. 485.) However, a juror’s faulty logic, disagreement
about how the law should be applied to the facts, and how
deliberations should be conducted are not grounds for discharge.
(Ibid.) Not deliberating well is an inadequate basis to remove a
juror for failure to deliberate. (Shanks v. Department of
3 All further statutory references are to the Penal Code.
6
Transportation (2017) 9 Cal.App.5th 543, 555.) A juror who
participates in deliberations for a reasonable period of time may
not be discharged for refusing to deliberate simply because the
juror states that further discussion will not alter the juror’s
views. (Cleveland, at p. 485.)
When reviewing a trial court’s decision to discharge a juror
for misconduct, we accept the trial court’s findings on credibility
and historical facts if supported by substantial evidence. (People
v. Peterson, supra, 10 Cal.5th at p. 472.) “We will uphold the trial
court’s decision if the record supports the basis for that decision
as a ‘ “demonstrable reality.” ’ ” (Ibid.) This more stringent
standard of review means that the record must reveal the reason
for the decision, and substantial evidence must support that
reason. (Id. at pp. 472–473; accord, People v. Armstrong (2016)
1 Cal.5th 432, 450–451.) “That heightened standard more fully
reflects an appellate court’s obligation to protect a defendant’s
fundamental rights to due process and to a fair trial by an
unbiased jury.” (People v. Barnwell (2007) 41 Cal.4th 1038,
1052.) Credibility determinations, however, are within the trial
court’s purview and will not be reweighed on appeal, as a trial
court’s firsthand observations are unavailable on appeal. (Id. at
p. 1053.)
The trial court here relied on a combination of factors in
finding good cause to discharge Juror No. 3. The first factor was
that Juror No. 3 was trying to suppress the deliberative process.
However, the record does not support that factor as a
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demonstrable reality. Of the nine jurors4 asked about Juror No.
3’s behavior during deliberations, seven said he was deliberating
and not preventing others from deliberating. Even Juror No. 4,
who first raised Juror No.’s 3’s behavior, conceded he was not
refusing to deliberate, even if he did so in an unpleasant manner,
and characterized what was happening as a difference of opinion
rather than a refusal to deliberate.
In reaching its conclusion that Juror No. 3 was trying to
suppress the deliberative process, the trial court relied heavily on
Juror No. 10’s testimony. When asked how Juror No. 3 was
impeding the deliberative process, Juror No. 10 referred to Juror
No. 3’s statement that race might play a factor. By this, Juror
No. 10 felt he was insinuating that Black jurors would vote one
way and the others another way. Although the statement is
concerning, it is also vague. Was Juror No. 3 saying race played
a factor in the crime and/or in deliberations or did the juror mean
something else? Juror No. 10’s view was that Juror No. 3 was
insinuating that people would vote according to their race. While
this appears to be Juror No. 10’s opinion about what Juror No. 3
meant, a trial court must be wary of relying on a juror’s opinions
rather than the objective facts and its consideration of the juror’s
conduct. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 75.)
Even if Juror No. 3 was implying that jurors would vote
according to their race, it is not clear that this amounts to
misconduct. If there was a clearer showing that Juror No. 3, for
example, made a credibility determination based on racial bias,
4 Jurors Nos. 1, 2, and 3 were not asked about this issue.
Although it may not always be necessary to question all jurors,
the better practice here would have been to do so.
8
then misconduct might be established. But the comments Juror
No. 10 attributed to Juror No. 3 are insufficient to show that as a
demonstrable reality.
Similarly, the other comments Juror No. 3 made about
another case in which he had been a juror are too vague to show
misconduct as a demonstrable reality. According to Juror No. 10,
Juror No. 3 referred to this other case as “an example of how
things are different” and “how certain jurors that he felt
shouldn’t be a part of the process.” It is unclear what point Juror
No. 3 was making by referring to the other case and whether he
was talking about jurors in that case or in this one. Without
more, it is hard to conclude that this comment gives rise to
misconduct as a demonstrable reality.
Still, Juror No. 3’s behavior clearly was off-putting to fellow
jurors. He was difficult, rude, and disrespectful. But such
behavior is not automatically a ground to remove a juror. (See,
e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1332 [stating
opinions in manner upsetting to other jurors not misconduct];
People v. Keenan (1988) 46 Cal.3d 478, 541 [harsh, inappropriate
outbursts not misconduct warranting setting aside penalty
verdict].) Rigorous, even heated, debate is common in
deliberations. (People v. Johnson (1992) 3 Cal.4th 1183, 1255.)
Some jurors may be impervious to such stress, others susceptible
to it. While Juror No. 10 and perhaps Juror No. 11 felt inhibited
by Juror No. 3’s behavior, the record is insufficient to show that
Juror No. 3 impeded the deliberative process or refused to
participate in it.
As another factor in its decision to discharge Juror No. 3,
the trial court said that Juror No. 3 separated himself from the
others by sitting on the couch or standing off to the side. While
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physically separating oneself from fellow jurors can be a sign of a
refusal to deliberate (People v. Cleveland, supra, 25 Cal.4th at
p. 485), it is unclear whether Juror No. 3 did so as a refusal to
deliberate or to indicate that further deliberations would not
change his mind. In fact, Juror No. 6 said that although Juror
No. 3 sat on the couch rather than at the table with the other
jurors, Juror No. 3 still communicated his views and contributed
to the conversation. Juror No. 12 said that although Juror No. 3
stood to the side sometimes, Juror No. 3 still interjected with
ideas. Only Juror No. 10 said that Juror No. 3 got up from the
table, sat on the sofa, and said he would not participate. But
Juror No. 3 did this at the end of a full day of deliberations. It
was therefore not clear that Juror No. 3 was merely indicating
that further discussion would not change his mind. Where a
juror participates in deliberations for a reasonable time and then
stops because he believes that further discussion will not alter his
views, it is improper to dismiss the juror. (See, e.g., People v.
Armstrong, supra, 1 Cal.5th at p. 453; Cleveland, at p. 485;
People v. Bowers (2001) 87 Cal.App.4th 722.)
Juror No. 3 did state his opinion about the verdict at the
outset of deliberations even though the trial court had instructed
that stating opinions “too strongly at the beginning or
immediately announcing how you plan to vote may interfere with
an open discussion.” However, the reality of human nature is a
juror may hold an opinion at the outset of deliberations. (People
v. Allen and Johnson, supra, 53 Cal.4th at p. 75.) “A juror who
holds a preliminary view that a party’s case is weak does not
violate the court’s instructions so long as his or her mind remains
open to a fair consideration of the evidence, instructions, and
shared opinions expressed during deliberations.” (Id. at p. 73.)
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Juror No 3 may have had strong opinions at the outset of
deliberations and never changed his mind, but he did participate
in discussions.
In this respect, People v. Bowers, supra, 87 Cal.App.4th 722is on point. In that case, the trial court received a report that
Juror No. 4 was not deliberating. (Id. at p. 725.) Jurors
disagreed about the degree of Juror No. 4’s participation. Many
agreed he had participated in deliberations but had just made a
decision from which he would not be swayed. At times, Juror
No. 4 was inattentive and unresponsive to questions. Juror No. 4
himself said he had participated in discussions but was simply
unwilling to go along with the majority. The trial court found
that Juror No. 4 did not enter into meaningful deliberations and
had made up his mind after hearing the first witness testify. (Id.
at pp. 727–728.) The appellate court found it was error to
discharge Juror No. 4. While there was evidence, he was
inattentive at times and did not participate as fully as others,
“this conduct was a manifestation, effectively communicated to
the other jurors, that he did not agree with their evaluation of the
evidence.” (Id. at p. 730.) Similarly here, almost all jurors
agreed that Juror No. 3 participated in deliberations but merely
refused to change his mind.
Nor can we find that the other reason the trial court cited
for discharging Juror No. 3—he violated the trial court’s order
not to talk about the case—provided a sufficient ground to
discharge him. The trial court expressly said it was relying on a
combination of factors to find good cause to dismiss Juror No. 3.
The trial court never stated that Juror No. 3’s phone call alone
would have provided such good cause. Indeed, only two jurors
overheard the comment. Both said it did not affect their
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impartiality. A stray comment having no impact on deliberations
does not rise to the level of misconduct sufficient to discharge a
juror. (See People v. Jefflo (1998) 63 Cal.App.4th 1314, 1329 [no
showing juror’s statement that jury was hung influenced
verdict].)
In sum, the factors the trial court cited as grounds to
discharge Juror No. 3 do not appear in the record as a
demonstrable reality. And because jurors referred to a difference
of opinion between them and Juror No. 3, who it would thus
appear was the lone holdout, it is reasonably probable a result
more favorable to Cheatham would have been reached but for the
error. (See, e.g., People v. Bowers, supra, 87 Cal.App.4th at
pp. 735–736.) Reversal is therefore required.
DISPOSITION
The judgment is reversed. The matter is remanded for a
retrial at the People’s election.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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