Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F06339
CANTIL-SAKAUYE, J.
Defendants Renecha Gulley and Earl Christopher were found guilty by separate juries of assault by a caretaker on a child under the age of eight with force likely to produce great bodily injury resulting in death (Pen. Code, § 273ab) and second degree murder. (§ 187, subd. (a).) The trial court sentenced both defendants to a prison term of 25 years to life for their convictions of assault causing death of a child. The trial court imposed but stayed a 15-years-to-life term on both defendants for their second degree murder convictions.
The prosecutor chose to refer to the section 273ab charge as child homicide for short. We choose to use “assault causing death of a child” as shorthand for the offense. Further undesignated statutory references are to the Penal Code.
On appeal, defendant Gulley contends the trial court erred (1) by instructing the jury on concurrent causation with CALJIC No. 3.41, (2) by instructing the jury with a special instruction based on People v. Culuko (2000) 78 Cal.App.4th 307 (Culuko), and (3) by failing to award credits for pretrial custody time.
On appeal, defendant Christopher contends (1) the trial court’s removal of Juror No. 1 violated his constitutional rights, and (2) the trial court erred by failing to award credits for his pretrial custody time. Defendant Christopher also joins in defendant Gulley’s claims of error.
Defendant Christopher did not join in defendant Gulley’s claims in his briefs filed on appeal, but shortly before oral argument submitted an application to adopt the arguments of coappellant Gulley. We granted him permission to file the application and will allow him to join in the arguments submitted by defendant Gulley.
We shall award defendants credit for their pretrial custody time, but otherwise affirm the judgments.
FACTUAL BACKGROUND
Prosecution Evidence Before Both Juries
On July 18, 2004, at 8:45 a.m., the Sacramento Metropolitan Fire Department was dispatched to a call for a child who had fallen out of bed. A fire engine and ambulance arrived at the scene together at 8:51 a.m. Thomas Dunne, a paramedic firefighter, arrived in the ambulance. Dunne testified that as he was pulling the ambulance gurney out a man carrying a small child walked up and set the child on the gurney. The child (three-year-old Christopher Thomas) was limp and not responding at all. Dunne was not expecting this as usually a fall with a head injury is a bump on the head.
Due to the similarity in names between the victim Christopher Thomas and defendant Earl Christopher, we will refer to the child victim simply as Christopher. We will refer to defendant as defendant Christopher.
Christopher was breathing, but his jaws were clenched tight. Dunne rubbed Christopher to wake him up, but Christopher did not move. When Dunne pinched Christopher’s hand hard, one arm moved a little bit. When Dunne lifted the T-shirt Christopher was wearing, he saw bruises everywhere, including on Christopher’s chest, hip, buttocks, and back. He also noticed burn marks on Christopher’s lower extremities. Although Christopher’s pupils were initially the same size, on the ride to the hospital, one of Christopher’s eyes became “blown,” which means the pupil became really big, eventually becoming fully dilated. Christopher’s eyes deviated to the left. Christopher’s symptoms indicated a bleed in the brain causing pressure on the brain.
The ambulance traveled “code three” to the hospital and arrived at 9:17 a.m. Christopher was whisked into the emergency room. He was unconscious and nonresponsive. Dunne described him as lifeless.
Dr. Kevin Coulter, a pediatrician with a specialty in child abuse and the medical director of the child abuse clinic at the University of California Davis Medical Center was called to help with the medical assessment of Christopher. Coulter first saw Christopher in the intensive care unit after Christopher’s examination in the emergency room and after completion of the initial medical tests. The CAT scan of Christopher’s head revealed a subdural hematoma, a bleeding over the surface of the brain between the brain and the skull. The bleeding in Christopher’s head covered the left side of his brain and was also underneath the brain, causing pressure on his brain. The brain had become swollen and the combination of swelling and blood had shifted Christopher’s brain to the right. There was no evidence of a skull fracture or injuries to the spinal cord. Coulter originally thought there was not only fresh subdural blood on Christopher’s brain, but also old blood. He later revised that opinion to conclude all of the blood was from a recent acute hemorrhage. Christopher’s condition was grave on his arrival at the hospital.
In order to control the swelling of Christopher’s brain, Christopher was taken into surgery even though he was not in a stable condition. Neurosurgeons removed a bone flap from Christopher’s skull in order to try to suction blood off the brain and allow space for his brain to swell out of the opening. Christopher became very unstable during surgery, suffering a 15- to 45-minute period of time in the operating room when he needed cardiopulmonary resuscitation. Christopher’s brain was not in a condition where Christopher could be saved. The brain death protocol was started with a first exam at 10:00 p.m. on July 18, 2004. The exam showed Christopher’s brain had died. When a second exam confirmed the result, Christopher was declared legally dead on July 19, 2004.
Coulter testified Christopher had a number of bruises and other injuries on his body. There were parallel lines of bruising on the front of his chest, a bruise below his knee, areas of injury to his left forearm, an area of healing injury to his wrist, a healing abrasion on his right upper thigh, an injury to his upper cheek right below the left eye, older burn scars on his lower leg, and bruises on his right thigh, right hip, over his right buttocks, on his right shin, on his back and on the front and back of his right upper arm. Although the bruises below the knee were consistent with accidental injury, the bruises in the other areas were more likely inflicted injuries. Some of the bruising was consistent with grasping injuries; others were consistent with an object impacting Christopher’s body. Coulter testified the injuries were not the result of medical intervention. In Coulter’s opinion, all of the bruising except the scars was inflicted within the previous nine days. None of the injuries from the neck down were life-threatening.
Coulter opined Christopher’s brain injury was the result of an acceleration/deceleration action similar to what happens in a car accident or a fall from a balcony. It could have been the result of an impact too, but with an acceleration/deceleration component. A fall from a bed was unlikely to have caused either the fatal head injury or the totality of the bruising. Coulter testified an adult pushing Christopher into a wall with one hand could explain Christopher’s injuries depending on the force of the push and impact.
Coulter testified one single event caused the bleeding on Christopher’s brain. However, he explained multiple actions can occur within an event and that “event” really meant episode that “may encompass a multiplicity of actions[.]” Coulter believed Christopher sustained his head injury within 24 hours from his hospital admission, but could not rule out that Christopher was injured twice within such time. Christopher’s head injuries could have happened between 4:00 a.m. and 9:00 a.m.
Coulter was shown a video, taken approximately eight hours before Christopher was brought to the hospital, of Christopher interacting with a puppy. Coulter testified it was unlikely Christopher’s head injury had occurred at that point. Coulter was also shown a video of a fist fight between Christopher and his five-year-old brother Deon. Coulter testified neither the fight nor any similar interactions caused Christopher’s injuries.
Dr. Stephany Fiore, a forensic pathologist, performed an autopsy of Christopher. Fiore noted bruising on Christopher’s fingers in addition to the bruises and scars noted by Coulter. The bruise on Christopher’s thigh was deep, extending into the fat below the skin. Others were more superficial. All of the bruises and scrapes were fresh injuries that happened around the same time. She estimated the time of the injuries in the realm of hours rather than days prior to death.
Fiore noted three areas of trauma on the outside of Christopher’s head: a bruise on his left cheek; a bruise on the left side of his forehead; and another bruise on the left side of the back of his head. Inside his head, Christopher had large subdural hemorrhaging that preexisted the medical intervention. All of the blood was new. The bruises showed Christopher received blows that could have caused the subdural bleeding. One or all three of the blows could have caused the bleed.
Fiore gave the cause of death as blunt force injuries to the head. She testified great force was required to produce these injuries and that it was not medically reasonable to conclude they were caused by a simple fall from a bed. According to Fiore, a child of the age, size and physical capabilities of Deon would not have been capable of inflicting the injuries that caused Christopher’s death. The fatal injuries were consistent with being shaken back and forth or being slammed into a wall.
With these types of injuries, Fiore expected a progression of symptoms. Immediate loss of consciousness could occur, from which the injured person might or might not recover. This would be followed by a phase of symptoms caused by the accumulation of blood within the skull and the swelling of the brain. Such symptoms would include a change in the level of consciousness, changes in the eyes, and sometimes vomiting. A loss of consciousness would usually occur within a very short period of time.
Fiore agreed with Coulter that Christopher did not appear to have been injured at the time the video with the puppy was taken. She believed the injury probably occurred within a few hours of the time 911 was called. She testified there was a medical possibility that prompt medical attention may have kept Christopher alive, but given his significant head injury she could not say in what condition he would have lived.
Statements Given At The Scene
At the scene, defendant Christopher identified himself as Christopher’s godfather to a deputy sheriff, who arrived with the fire department and ambulance that morning. He told the deputy Christopher frequently stayed at defendants’ apartment. He had been staying with them for the previous nine days. Defendant Christopher claimed Christopher usually had a new bruise every time he came to visit.
Defendant Christopher told the deputy that he left the apartment around 6:00 a.m. to take his wife, defendant Gulley, to work. Three children were left at the apartment; his nephew Jeffrey Bailey and his godchildren Christopher and Deon. When defendant Christopher returned, he moved Christopher from the front room into the bedroom because their puppy was messing with Christopher when he was in the front room. Around 8:00 a.m. defendant Christopher heard a thud in the bedroom. When he went to check on Christopher, he saw him on the floor, lying next to a speaker box. Christopher’s eyes were open, but he looked dazed. Defendant Christopher brought Christopher out to the front room and put him on the couch. His head kind of flopped back and he appeared to go to sleep.
Defendant Christopher became concerned when he later could not wake Christopher. He called his wife at work and told her she needed to come home. Defendant Christopher subsequently took Christopher with him to pick up his wife from work and they went together to the VA hospital on Mather Air Force Base. It turned out there was no emergency facility there. Defendant Christopher declined an employee’s offer to call 911 for them. Defendants went home and called 911.
Another sheriff’s deputy entered the defendants’ apartment just after Christopher was picked up by the ambulance. He observed Jeffrey asleep on a loveseat and Deon asleep on the floor. When he awoke, Deon told the deputy he had been staying with defendants, his godparents, for a number of days. Deon made a spontaneous statement: “Please don’t put him in jail.” When asked, Deon said he was referring to his godfather. Deon related that his godfather woke him early that morning and asked where Christopher got his whoopings. Deon said he did not know and went back to sleep. Deon told the deputy that his godfather had punched Christopher very hard in the chest and demonstrated the punch for the deputy by punching himself with a closed fist. Deon said his godfather hit Christopher in the same manner during the previous night and Christopher cried really hard. Deon said he got whoopings from both his godparents and his mother. Christopher got more whoopings because he was really bad.
Defendant Gulley’s Interview Statements
Defendants agreed to accompany officers downtown to talk about the circumstances leading to Christopher’s hospitalization. Defendant Gulley and defendant Christopher were placed in adjoining rooms where they could communicate through the common wall. A videotape of defendant Gulley’s interview with Sheriff’s Detective Tom Koontz was played at trial.
Although defendant Gulley requests this court view the videotape of this interview, the videotape was never transmitted to this court. (See Cal. Rules of Court, rules 8.224 & 8.320(e).) We have relied on the transcript of the interviews contained in the clerk’s transcript on appeal and the testimony regarding such interviews.
For the first several hours of the six-hour interview defendant Gulley claimed Christopher was fine when she left for work that morning around 5:30 or 5:45 a.m. Defendant Christopher took her to work and would have been back home around five to 10 minutes later. She said defendant Christopher started calling her at work around 7:30 or 7:45 a.m. saying something was wrong with Christopher and that he was not responding. Defendant Gulley told her husband that Christopher was probably just tired and to let him sleep. Defendant Christopher continued to phone defendant Gulley. Assured that Christopher was breathing fine, did not have a temperature, and was not cold or pale, defendant Gulley continued to recommend letting Christopher sleep. Defendant Gulley told defendant Christopher not to call 911 because she thought he was exaggerating. She became more concerned when defendant Christopher told her he had lifted Christopher’s eyelids and that one of the pupils was bigger than the other and that Christopher had fallen off the bed and hit the speaker box. Defendant Gulley called Kaiser to speak with an advice nurse, but was told they could not give out advice to nonmembers.
Defendant Gulley’s manager would not let her leave because she was the only employee at work. Defendant Christopher brought Christopher to the AM/PM to convince the manager defendant Gulley was not lying and needed to leave. Defendants took Christopher to the hospital by the Air Force Base, but it did not have an emergency room. They took him home and called 911. The only thing defendant Gulley knew happened to Christopher was that he fell off the bed and hit the speaker box. Defendant Gulley said she was willing to take a lie detector test as she was telling the truth.
When Koontz left the interview room defendants spoke to each other through the adjoining wall. After their conversation, defendant Gulley changed her story. She told Koontz that when she woke up for work she saw Christopher was laying there without his clothes on. Defendant Gulley told Christopher to go stand in the corner until she left. Christopher started crying. Defendant Gulley grabbed him by his arm, but he would not stand on his feet. He kept falling to his knees. Defendant Gulley grabbed him, shook him and pushed him towards the corner, telling him to stand in the corner. Defendant Gulley claimed she only shook Christopher with one hand. To her it wasn’t hard, but to Christopher it probably was. She said that when she pushed him against the wall, he hit his head. When she was ready to leave for work, she put clothes on Christopher and laid him down to go to sleep. She claimed defendant Christopher did not know that she had shaken Christopher. It did not cross her mind to tell defendant Christopher about the incident when he started calling her at work. She did not have him call 911 even after he said one of Christopher’s pupils was bigger than the other because she did not think he knew what he was talking about and she wanted to see Christopher for herself. She denied it was because she did not want to get in trouble for shaking Christopher.
When Koontz left the interview room again, defendant Gulley told defendant Christopher through the wall: “Baby? I told them I did it. . . . ‘Cause I didn’t want you to have to go through all that you’re going through over there. . . . It’s either me or you, babe. . . . Huh? ‘Cause I heard her over there antagonizing you. . . . Everybody is trying to put that shit on you. I didn’t sell. I didn’t sell. . . . They need somebody and it’s either going to [be] you or it’s going to be me. Promise to stay by my side. Okay?” When Koontz returned and asked defendant Gulley if she was trying to protect somebody, she said she was telling the truth and she was not just saying she did it. In a later conversation with defendant Christopher through the wall, she told him they would have to let him go now.
She refused to take an offered lie detector test at this point, but later said they could give her the test as to whether she only disciplined Christopher by spanking him.
The next day Koontz interviewed defendant Gulley again. The tape of that interview was also played for the jury. Defendant Gulley told Koontz that Christopher was awake when she got up for work and that he had taken his clothes off. Defendant Gulley told him to get up and put some clothes on. Christopher just sat there, so defendant Gulley told him to go stand in the corner. Defendant Gulley brushed by Christopher as he was standing in the corner. She bumped him and he fell. She picked him up by his arm to get him to his feet, but he kept falling to his knees. She instructed him to stand up and get in the corner. She “kind of projected him” towards the corner and he fell and hit his head. After about five minutes, she told Christopher to go lay down and he walked over and laid down. She went to work. She told defendant Christopher not to call 911 even after several of his phone calls to her at work because she wanted to wait and see if Christopher would wake up.
She offered to take a lie detector test during the course of the July 19 interview.
Jeffrey’s and Deon’s Trial Testimony
At trial, Deon testified Christopher got in trouble the night before his death. He thought Christopher was spanked or put in a corner. Christopher got punished by defendants a lot of times. Defendant Gulley spanked Christopher with a big belt, an electric cord, and a spoon. Defendant Christopher spanked him with a belt and a big lace. Both defendants hit Christopher with their hands. Deon thought defendant Christopher threw Christopher and that was how Christopher got killed. Deon heard the army video game defendant Christopher was playing pause and then heard a bam or a boom on the wall, like something hit the wall. Christopher cried. Defendant Gulley was not there at that time in the morning.
Defendant Christopher’s nephew Jeffrey testified at trial. He was 10 years old at the time of Christopher’s death. Jeffrey testified Christopher got in trouble on the morning of his death when he peed on himself. Defendant Gulley told Christopher to go to the bathroom and he had to stand in the corner for awhile. Defendants then left so defendant Gulley could go to work. Christopher kept crying for some juice after defendants left. Jeffrey testified Deon, bothered by Christopher’s crying, kicked/pushed Christopher. Christopher fell and hit his head on the coffee table. Christopher cried and held and rubbed his head. Christopher was dizzy. He laid down on the couch. According to Jeffrey, Christopher had bruises from what Deon did. Deon did not like Christopher and always hit him with toys and stuff when defendants were not looking. Jeffrey admitted he went to visit defendant Christopher in jail a lot of times, but denied his family talked to him about what to say to help his uncle.
Sacramento Sheriff’s Detective Kelly Clark testified he spoke with Jeffrey on July 18, 2004 around 10:45 a.m. Jeffrey never told Clark that Deon kicked Christopher causing him to hit his head. Jeffrey not only said he never saw Deon hit Christopher, but he said he never saw anyone hit Christopher.
Jeffrey’s mother testified she took Jeffrey to see defendant Christopher in jail a number of times, but denied defendant Christopher suggested Jeffrey should testify that defendant Christopher did nothing to Christopher or that she suggested to Jeffrey what he should say in court.
Prosecution Evidence Before Defendant Gulley’s Jury Only
One of the sheriff’s deputies who responded to assist with the injured child call spoke with defendant Gulley at the apartment. Defendant Gulley said she was the godmother of Christopher and Deon. Defendant Gulley told the deputy it was not uncommon for her to keep Christopher and Deon for weeks or months at a time. She thought their mother was not a very good mother and that she abused the children. Christopher would frequently come over with bruises. She allowed the deputy to enter the apartment to check on the two children remaining there.
Defendant Gulley wanted to show the deputy where Christopher fell. She took him to the bedroom where she moved a speaker from at least three feet away from the bed closer to the bed and said that was where it had been when Christopher fell.
Defendant Gulley told the deputy that the previous night Christopher ate a good dinner, had fun, and stayed up to 10:00 or 10:30 p.m. Christopher got up around 3:00 a.m. and asked for a drink of water. Defendant Gulley told him no and to go back to bed. Nothing was wrong with Christopher at that time. Christopher was still asleep when defendant Gulley got up for work around 5:45 or 6:00 a.m. At that time the other boys were still playing videogames. Defendant Christopher drove her to work at the AM/PM around 6:00 a.m. She received the first of several phone calls from defendant Christopher telling her Christopher fell out of bed and was not responding around 7:45 a.m. He called her five to seven times, but she could not leave work as she was the only employee there. Defendant Christopher brought Christopher to the AM/PM and defendant Gulley took him in to show her manager. After her manager turned her back on them, defendant Gulley carried Christopher back to the car and they left. Defendant Gulley described Christopher at that time as lifeless.
Defendants went to the Mather hospital, but were told they could not be helped. Since they did not know what was wrong with Christopher, they took him home and called 911.
Robert Piispanen, a coworker of defendant Gulley, testified he was woken up by a phone call from defendant Gulley at 7:15 a.m., at the latest 7:25 a.m., on July 18, 2004. Defendant Gulley told him she was not able to work that day as her godson was sick. She was going to take the child to the hospital. Piispanen asked why her husband could not take the child, but agreed to come into work to cover defendant Gulley’s shift. Piispanen got to the AM/PM around 8:15 or 8:30 a.m. Defendant Gulley and her husband left with the child.
Defense Evidence Before Both Juries
Defendant Gulley testified on her own behalf. She denied striking Christopher the morning he was taken to the hospital. She said she did not slam him against the wall and she did not cause any bruising. She denied doing anything to cause Christopher’s death. She admitted she told defendant Christopher not to call 911 even after his third phone call to her. She said she thought Christopher’s responses sounded normal and his injuries were not that severe.
Defendant Gulley decided to take the blame for Christopher’s injuries after talking to defendant Christopher while they were in custody. Defendant Christopher told her he would take the blame. Defendant Gulley felt hurt because she did not believe he caused the injuries and she did not want him to take the blame. She decided to take the blame instead. Her statement to Koontz after that conversation was not truthful. She felt pressured by the officer. She thought if she told the officer something to satisfy him, she would be arrested and defendant Christopher would be set free. Even though both of them were subsequently arrested, she stuck to her story the next day because she believed her innocence would be shown. Something would show Christopher’s fatal injury was from falling off the bed and hitting his head.
Defense Evidence Before Defendant Gulley’s Jury Only
Dr. Richard Ofshe, a professor of social psychology and expert on police interrogations and the manner in which a person can be manipulated into giving a false confession, testified before defendant Gulley’s jury. He testified regarding police interrogation techniques and correlated some of those techniques to Koontz’s interview of defendant Gulley. Ofshe had listened to the communication between defendants while they were being interrogated and believed her subsequent confession was consistent with defendant Gulley’s testimony that she confessed to match defendant Christopher’s offer to do it for her. Ofshe felt defendant Gulley’s confession was contaminated in the sense that Koontz shaped the confession by suggesting what it should contain.
DISCUSSION
I.
The Trial Court Did Not Err In Giving CALJIC No. 3.41 (Concurrent Causation)
On appeal, defendants contend the trial court erred in instructing their juries with CALJIC No. 3.41 on concurrent causation because there was no evidence to support a finding defendants were acting together at the time the fatal injury was inflicted on Christopher. Pointing to the jury instruction given on causation in general, defendants contend the combination of CALJIC No. 3.41 and the causation instruction permitted “the jury to find that the target crimes were a cause of death and that both defendants, having participated in the child abuse alleged as the target crimes were guilty of murder, thus short circuiting the findings required for aiding and abetting child homicide [assault causing death of a child - § 273ab charge] or the elements required to find [the defendant] guilty of a murder/homicide committed by [their codefendant] under the natural and probable consequences theory of liability.” Put another way, defendants argue the instructions allowed each of their juries to decide each defendant was guilty of murder and assault causing death of a child simply based on theirequal liability for the non-life-threatening abuse of Christopher over the course of the nine days prior to his fatal injury. The error was exacerbated, according to defendants, when the trial court added a paragraph to the natural and probable consequences instruction that told the jury if it found defendant aided and abetted one of the uncharged target offenses “and that murder and/or assault causing the death of a child was the natural and probable result of one of those crimes, then the defendant is guilty of murder and/or assault causing the death of a child. You do not need to agree which of the crimes the defendant aided and abetted.” We reject defendants’ claims.
Both juries were instructed from CALJIC No. 3.41 as follows: “When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the death. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death. [¶] If you find that the defendant’s conduct was a cause of death to another person, then it is no defense that the conduct of some other person contributed to the death.”
Although neither defendant objected to the instruction in the trial court, we may review the claim on appeal “if the substantial rights of the defendant were affected thereby.” (§ 1259.)
Both juries were instructed on causation in language combined from CALJIC No. 3.40 and Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 620 as follows: “There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death. [¶] To constitute the crime of murder or assault causing the death of a child there must be, in addition to the death an unlawful act or omission which was a cause of that death. [¶] Criminal law has its own particular way of defining cause. A cause of the death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission, the death and without which the death would not occur. [¶] If you have a reasonable doubt whether the defendant’s act caused the death, you must find him or her not guilty.”
Both juries were instructed that defendant could be guilty of the charged offenses (assault causing the death of a child and murder) based on being the actual perpetrator of the crime or based on aiding and abetting someone else who committed the crime. (CALCRIM No. 400.) With respect to aiding and abetting, the juries were instructed on principles applicable to aiding and abetting the crime (CALCRIM No. 401) and the natural and probable consequences theory of liability for aiding and abetting the uncharged target crimes of child abuse likely to produce great bodily harm or death (§ 273a, subd. (a)) or inflicting physical punishment. (§ 273d, subd. (a).) (CALCRIM Nos. 403, 821, 822.)
First, there was sufficient evidence introduced to support the trial court’s giving of the concurrent causation instruction (CALJIC No. 3.41) because evidence was admitted showing Christopher’s head injury could have been the result of multiple acts. Specifically, although Coulter testified there was evidence of one injury to Christopher’s head, presumably from one event, he immediately said he could not rule out the possibility that there were additional events along with it and he explained that multiple actions can occur within an event. By “event,” Coulter said he really meant episode that “may encompass a multiplicity of actions[.]” Coulter believed Christopher sustained his head injury within 24 hours from his hospital admission, but could not rule out that Christopher was injured twice within such time. Fiore noted three areas of trauma on the outside of Christopher’s head; a bruise on his left cheek, a bruise on the left side of his forehead, and another bruise on the left side of the back of his head. The bruises showed Christopher received blows that could have caused the subdural bleeding. One or all three of the blows could have caused the bleed. According to Fiore, the fatal injuries were consistent with being shaken back and forth or being slammed into a wall.
Thus, contrary to defendants’ argument, there was evidence from which the jury could have found, as the prosecutor expressly argued, Christopher was fatally injured by the acts of both defendants (i.e., both being shaken and pushed into the wall by defendant Gulley and then later being thrown into a wall by defendant Christopher) with each defendant’s action being a concurrent cause of Christopher’s death.
Defendants argue against this conclusion, claiming Coulter’s testimony is “unclear at best” and that it is inconsistent with his earlier testimony that he saw one injury leading him to presume Christopher was injured in one event. Defendant Gulley also contends Coulter’s description of the type of actions necessary to cause Christopher’s injury was not consistent with what defendant Gulley said she did to Christopher and that the medical testimony was much more supportive of Deon’s testimony that defendant Christopher threw Christopher into a wall after defendant Gulley went to work.
To the contrary, Coulter’s testimony is clear that multiple actions could be part of “one event” as he was using the term. It is also clear that his testimony referring to one fatal injury referred to the subdural hematoma Christopher suffered, as opposed to the myriad of other bruises, abrasions, and burns he observed on Christopher’s body, and not to the act or acts causing such fatal injury. Coulter’s description of the type of actions that could cause an injury like Christopher’s was consistent with the type of acceleration/deceleration with impact actions defendant Gulley admitted she performed. The jury did not have to credit defendant Gulley’s description and possible minimization of the amount of force she used in shaking and pushing Christopher. Coulter testified an adult pushing Christopher into a wall with one hand could explain Christopher’s injuries depending on the force of the push and impact. Fiore specifically testified Christopher’s fatal injuries were consistent with being shaken back and forth or being slammed into a wall. Thus, the medical testimony supported several possibilities; that Christopher was fatally injured by defendant Gulley’s actions, by defendant Christopher’s actions, or by both of their actions.
Defendant Gulley, however, contends concurrent causation of Christopher’s head injury is inconsistent with Fiore’s testimony that Christopher would have lost consciousness immediately or almost immediately after the fatal act. In fact, Fiore testified immediate unconsciousness could occur after this type of injury, from which the injured person might or might not recover. A phase of symptoms would then follow that would include a change in the level of consciousness. Fiore testified there is “usually” a loss of consciousness within a very short period of time. This testimony does not preclude a determination by the jury that defendant Gulley shook/pushed Christopher a couple of minutes before she left for work between 5:45 a.m. and 6:00 a.m., that Christopher was conscious when she left for work, and that when defendant Christopher returned five to 10 minutes later, defendant Christopher threw Christopher against a wall.
We also note a second way in which the juries could have found concurrent causation of Christopher’s death. The juries could have believed defendant Gulley’s trial testimony that her confessions during the interviews with Koontz were false, and defendant Gulley did not shake/push Christopher. The juries could have believed that Christopher received his fatal head injury when defendant Christopher threw him into a wall, but that Christopher would not have died if defendant Gulley had insisted on defendant Christopher immediately getting him medical attention instead of directing defendant Christopher not to call 911. Christopher had been left in defendant Gulley’s care for the previous nine days, during which time Christopher received all of the injuries resulting in the bruises and abrasions noted by the doctors. Knowing this situation, defendant Gulley was under a duty to promptly seek medical attention for Christopher when her husband called, starting before 7:25 a.m. (Piispanen testified he was woken up when defendant Gulley called telling him that her godson was sick at 7:15 a.m., at the latest 7:25 a.m.), and told her Christopher was nonresponsive. Fiore testified there was a medical possibility that prompt medical attention may have kept Christopher alive, even if given his significant head injury she could not say in what condition he would have lived. Instead of calling or directing defendant Christopher to call 911, defendant Gulley told him not to make such a call and defendants’ subsequent actions (bringing Christopher to defendant Gulley’s work, then to the VA hospital, then taking him back home) delayed calling medical help for almost an hour and a half. This evidence was sufficient to support a finding of implied malice in defendant Gulley’s failure to act, which could have been a concurrent cause of Christopher’s death. In a similar way, the juries could have believed defendant Gulley inflicted the fatal injury, but defendant Christopher’s subsequent failure to get prompt medical attention amounted to implied malice and concurrent causation of Christopher’s death.
The prosecutor argued defendant Gulley’s instruction to defendant Christopher not to call 911 amounted to implied malice. Peculiarly, the prosecution seemed to later abandon this theory of murder when, in response to the defense argument that the delay did not cause Christopher’s death, the prosecutor agreed and stated she was not alleging the delay caused his death, but that the delay showed defendant Gulley’s consciousness of guilt.
Finally, we reject defendants’ claim that the combination of the instructions permitted their juries to find themguilty of murder and assault causing the death of a child based only on finding defendants equally responsible for the criminal abuse of Christopher over the course of the nine-day period prior to his death.
In assessing whether the jury instructions given were erroneous, we “‘“‘must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]”’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Here the juries were not only given the instructions on causation and concurrent causation, but given an instruction on the natural and probable consequences theory, which provided the juries with correct instruction on the permissible way the uncharged target crimes of child abuse and infliction of physical punishment could be used to find defendants guilty of murder and/or assault causing the death of a child. (CALCRIM No. 403.) Such instruction expressly told each jury that in order to find the defendant guilty of murder and/or assault causing the death of a child, it must be satisfied beyond a reasonable doubt (1) that the crime of child abuse or inflicting physical punishment was committed, (2) that defendant aided and abetted such crime, (3) that a coprincipal in such crime committed the crimes of murder and/or assault causing the death of a child, and (4) that the crime of murder and/or assault causing the death of a child was a natural and probable consequence of the commission of the crime of child abuse or inflicting physical punishment. The entire charge to the jury considered together, precluded the jury from finding the defendant guilty based on a natural and probable consequences theory without first finding the other defendant committed murder and/or assault causing the death of a child.
Moreover, there is no reasonable likelihood the jury misunderstood the causation instructions in the manner defendants suggest. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. Clair (1992) 2 Cal.4th 629, 662-663.) The concurrent causation and causation instructions were directed to causation of Christopher’s death, not his injuries. There was no dispute Christopher died from trauma to his head. His other injuries, the bruises and abrasions from the neck down, were not life-threatening. Such injuries, while likely to have been the result of child abuse or infliction of physical punishment, did not cause Christopher’s death. Given such circumstances, the jury was unlikely to apply defendants’ proposed strained interpretation of the instructions when there were factual scenarios to which the concurrent causation instruction logically could be applied.
The trial court did not err in giving CALJIC No. 3.41.
II.
The Trial Court Did Not Err In Giving The Special Jury Instruction Based On Culuko
Defendants contend the trial court committed reversible error when it specially instructed each of their juries as follows:
“As I previously instructed, those who aid and abet a crime and those who directly perpetrate the crime are principals and equally guilty of the commission of that crime. You need not unanimously agree, nor individually determine, whether the defendant is an aider and abettor or a direct perpetrator. Nor must you individually choose among the theories, so long as each of you is convinced of guilt. There may be reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he/she was an aider and abettor, but no such doubt that he/she was one or the other.”
This language is nearly identical to, and was taken from, the language of a special instruction, called the “either/or” instruction, considered in Culuko, supra, 78 Cal.App.4th 307, 321. In Culuko, a seven-month-old infant died after being punched in the stomach. (Id. at p. 313.) The person who killed the infant had to be either his mother or the mother’s cohabiting boyfriend or both. (Ibid.) Both defendants had a history of abusing the infant and were found guilty of felony child abuse, assault causing the death of a child, and second degree murder, as either an aider and abettor or as the direct perpetrator. (Ibid.) The majority in Culuko rejected the claim that the instructions to the jury, including the “either/or” instruction, improperly permitted the defendants to be convicted of murder without a finding of malice. (Id. at pp. 320-323.) The court specifically concluded the “either/or” instruction “was a correct statement of law.” (Id. at p. 323.) It was derived from case law “holding the jury need not agree unanimously on whether the defendant was the perpetrator or the aider and abettor, and, accordingly, the trial court need not instruct the jury to agree unanimously on this. [Citations.]” (Ibid.) The court noted the portion of the instruction that stated each individual juror did not have to decide whether any given defendant was the perpetrator or the aider and abettor was nearly a direct quote from a California Supreme Court opinion. (Id. at pp. 323-324, citing People v. Santamaria (1994) 8 Cal.4th 903, 919.)
Defendants claim giving the “either/or” instruction here “exacerbated the error in giving the inappropriate concurrent causation instruction[.]” We have found no error in giving the concurrent causation instruction.
Defendants argue the “either/or” instruction lightened the prosecution’s burden of proving each element of the charged crimes beyond a reasonable doubt and ask us to reject the reasoning of the majority opinion in Culuko in favor of the dissent. (Culuko, supra, 78 Cal.App.4th at pp. 335-345 (dis. opn. of McKinster, J.).) We decline to do so because we agree with Culuko that the “either/or” instruction correctly states the law. Indeed, we note the California Supreme Court in People v. Jenkins (2000) 22 Cal.4th 900 (Jenkins), confirmed its language in People v. Santamaria, supra, 8 Cal.4th at page 919, that “‘as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty’” and that “‘[n]ot only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt.’” (Jenkins, supra, at pp. 1024-1025.) The jury need not unanimously agree on the “precise factual details” or the “particular manner” in which a killing occurred even though different facts support aiding and abetting liability and liability as a direct perpetrator. (People v. Pride (1992) 3 Cal.4th 195, 250; Jenkins, supra, at pp. 1025-1026.) “[T]he factors that establish aiding and abetting liability are not included as elements of the crime of murder.” (Jenkins, supra, at p. 1025.)
Finally, defendants claim the instruction should not have been given here because of several differences between this case and Culuko. They point out the infant in Culuko had multiple life-threatening injuries as opposed to Christopher’s single fatal injury. They note that one jury considered the guilt of both defendants in Culuko, whereas defendants here had separate juries. They note there is no indication that the jury in Culuko was given a concurrent causation instruction. We find the situation in Culuko to be very similar to this case and do not find the distinctions noted by defendants to be significant either individually or together.
III.
The Trial Court Did Not Err In Discharging Juror No. 1 Of Defendant Christopher’s Jury During Deliberations
A. Background Information
Defendant Christopher’s jury began deliberations late in the day and continued deliberating all the next day. They requested read-back of several witnesses’ testimony and reviewed videotapes of defendant Gulley’s interviews with Detective Koontz. On the next day of deliberations, the bailiff reported Juror No. 1 had approached him and told him she felt she was being targeted and verbally attacked in the deliberation room by several jurors, including the foreperson. She felt her opinion was not making a difference and that she was not being given a chance to express her opinions. She said the jury foreperson asked her to remove herself from deliberations, but she refused.
In response, the trial court interviewed both Juror No. 1 and the jury foreperson, Juror No. 9. Juror No. 1 told the court she was being treated with hostility when she expressed her opinion, which varied and differed from the other jurors. Juror No. 1 said one juror told her she was not following the letter of the law and suggested, “Maybe you should leave.” Juror No. 1 felt she was following the law. When asked by the court, Juror No. 1 believed she could still continue to deliberate and judge the case fairly and impartially. Juror No. 1 assured the court she was able to follow the instruction that jurors should not be afraid to change their mind if they are convinced they are wrong or hold to their position if they are convinced it is correct.
Juror No. 9, the jury foreperson, believed the jurors were treating each other respectfully and courteously. She understood it was her responsibility to make sure each juror had the opportunity to state their opinion without being treated with hostility. Juror No. 9 thought Juror No. 1 was uncomfortable with what was going on and the other jurors were trying to help her look through the evidence to address her questions. They wanted to help her resolve the issue, not necessarily to change her mind. Juror No. 9 felt she and the other jurors could still openly exchange ideas with each other and Juror No. 1. She asked the court if she should bring it forward if somebody “continues to struggle” and the court said she could bring it to the court’s attention if she felt she needed to.
The jury continued deliberations, at one point asking for the legal definition of two terms used in the instructions. However, at the end of the day the jury sent a note to the court asking to meet with it in order to “specifically request the removal of Juror #1.” When the bailiff received this note, he observed obvious hostilities between Juror No. 9 and Juror No. 1. He overheard Juror No. 1 threaten a lawsuit against Juror No. 9.
The next morning, the court decided to interview Juror No. 9 and then the other jurors in descending numerical order finishing with Juror No. 1.
Juror No. 9
Juror No. 9 told the trial court nine members of the jury requested the removal of Juror No. 1. The reason for the request was their belief that Juror No. 1 was incapable of making a decision. Juror No. 9 could not say whether this was intentional or unintentional on the part of Juror No. 1. Juror No. 9 described what was happening by an analogy to a team deciding whether a child should have surgery. The team worked through all the issues and came to the end, but one of the team members then says: “But the house is red.” It was that kind of misunderstanding and failure to correlate the issues that was happening in deliberations. Originally Juror No. 9 thought Juror No. 1 did not have enough information to make a decision, so the jury requested a lot of information from the court. Juror No. 9 no longer thought the problem was a lack of information. She explained the jury was not asking Juror No. 1 to make any particular decision, but just to make a decision.
Juror No. 9 expressed a concern that Juror No. 1 had made a comment that “this is just part of the game.” The other jurors told her “[t]his isn’t a game that we’re playing.” Juror No. 1 replied: “Well, you don’t know what I’m going to do next, do you?” Juror No. 9 thought this demonstrated a lack of “sincerity to really be a juror and understand what our role is in the system.”
Juror No. 9 did not believe Juror No. 1 simply disagreed with the other jurors; she felt Juror No. 1 would not make a decision. Juror No. 1 would make comments not related to what was being discussed. The other jurors were frustrated that they could not seem to help her decide. Juror No. 1 refused to give her position. She “says the house is red.” The other jurors had told her “undecided” was a decision in their opinion, but they could not even get that out of her. She constantly sought more information, but Juror No. 9 did not think additional information would satisfy her.
The trial court asked Juror No. 9 if Juror No. 1 was actively deliberating, meaning she was expressing her opinion, considering other opinions, asking questions and evaluating the evidence, the exhibits, and the law. Juror No. 9 thought she was attempting to do that, although she did not seem able to stay focused. The jury would be talking about one issue and Juror No. 1 would go off on something else. She thought the other jurors were frustrated with Juror No. 1, but were not being hostile.
Juror No. 12
Juror No. 12 joined in the request for the removal of Juror No. 1. According to Juror No. 12, Juror No. 1 told them she was “treating this as a game” and that “we have two weeks to figure this out.” She asked: “Is anybody in a hurry to go back to work?” She said she was “here for two weeks” and that “I have the option to change my mind as often as I need to.” The jury could not get anywhere. The jury would discuss a point and reach a point where they felt they could move forward only to have Juror No. 1 go right back to the start. Juror No. 12 truly felt Juror No. 1 was treating it as a game. Juror No. 1 told them they had two weeks to “do this” and she thought they needed “to slow it down and take our time.” Juror No. 12 felt Juror No. 1 “just cannot decide.” This was intentional by Juror No. 1.
Juror No. 11
Juror No. 11 joined in the request for the removal of Juror No. 1. According to Juror No. 11, Juror No. 1 was intentionally unwilling to make a decision. She seemed to be enjoying the attention she was getting from it. Juror No. 1 told them at the beginning of deliberations that “this is how I’m going to play the game.” Juror No. 11 told her it was not a game; that they were dealing with somebody’s life. Juror No. 1 shrugged her shoulders and kind of blinked at him. Juror No. 11 thought Juror No. 1 was going off her emotions and not following the law. Juror No. 11 said Juror No. 1 was deliberating, but “it seems like she’s not taking in the information and maybe processing it in the right way, like, ‘I don’t get it.’” Juror No. 11 denied there was hostility in the jury room, but felt some of the jurors were “fed up with the way she’s trying to gain control of the whole situation.”
Juror No. 10
Juror No. 10 joined in the request for the removal of Juror No. 1. According to Juror No. 10, Juror No. 1 was not a team player. She would go back and forth with her decision and kept going “back to day one again.” Juror No. 10 thought it was something more than just disagreeing with the other jurors’ decisions. Juror No. 1 wanted more facts and could not seem to comprehend that whatever they heard in the trial was all they were going to get. Juror No. 10 thought she was intentionally not making a decision based on her comment that “this is her game.” Juror No. 10 did not believe Juror No. 1 was deliberating.
Juror No. 8
Juror No. 8 joined in the request for the removal of Juror No. 1. According to Juror No. 8, Juror No. 1 could not make a decision. She waffled back and forth, saying one thing one minute and then, when the rest of the jury thought they were making progress, changing her mind. Juror No. 1 made comments like, “If you guys are in a hurry to go to work, then you should excuse yourself from the jury.” Juror No. 8 did not think that anybody was in a hurry, but they wanted at least to see progress. Juror No. 8 felt Juror No. 1 did not want to make a decision. She says she “thinks one way, but then applies it differently.” Juror No. 8 could not tell if she was intentionally thwarting the process, but Juror No. 8 did not think it was a failure to understand. He thought Juror No. 1 is intelligent, but “something is going on.” The other jurors were frustrated, but not hostile.
Juror No. 7
Juror No. 7 joined in the request for the removal of Juror No. 1. According to Juror No. 7, Juror No. 1 was not following the law. She “just wants to drag it out.” She appeared to think dragging it out would give the defendant more of a fair hearing and she implied the jury should not all come up with the same decision right away. Juror No. 1 would make one decision, then two minutes later she would change her mind. She was incapable of making a decision and standing by that decision. Juror No. 7 thought it was intentional. Juror No. 7 thought Juror No. 1 was enjoying being the center of attention.
Juror No. 6
Juror No. 6 abstained from the original vote on the request for the removal of Juror No. 1, but now agreed with the request to remove her. Juror No. 6 was originally not sure if Juror No. 1 was getting some undue pressure from the others because they were not agreeing with her. However, Juror No. 6 began to see where the others were coming from when Juror No. 1 came to a verdict, then changed her mind, and then said “Well, I may back off tomorrow.” Juror No. 6 felt Juror No. 1 was unable to make a decision “regardless of what verdict [they] were looking at.” Juror No. 6 thought Juror No. 1 was trying to work through things to the best of her ability for the most part and that she had continued to deliberate, but she was unable to crystallize her viewpoint. When asked if Juror No. 1 could not make a decision or whether she would not make a decision, Juror No. 6 felt it was “probably both.” Although Juror No. 6 thought Juror No. 1 was sensitive and felt she was being picked on, Juror No. 6 did not think Juror No. 1 was being unfairly treated.
Juror No. 5
Juror No. 5 agreed Juror No. 1 should be removed. According to Juror No. 5, Juror No. 1 seemed extremely distressed. Juror No. 1 would always talk about something that had happened in her life, but she would not say what it was. She just says, “You don’t understand where I’m coming from.” Juror No. 5 said Juror No. 1 “acts like my sister who has -- takes medication for depression.” Juror No. 5 did not think Juror No. 1 “will make a decision at all.” The stress was obvious on her face and she kept going on about having pain, which Juror No. 5 interpreted as emotional pain. Juror No. 5 thought she might have some sort of mental illness. The other jurors were helpful and kind at the start, but were getting frustrated with Juror No. 1.
Juror No. 4
Juror No. 4 agreed Juror No. 1 should be removed. Juror No. 4 was bothered by Juror No. 1’s reference to deliberations as being “a game” and statement that “we have no idea where she’s headed.” She felt some of the jurors were in a rush to get back to work and “that those of us who are in a rush to get back to work need to dismiss ourselves off the jury.” Juror No. 4 had not seen any proof that anybody was in a rush. All the requests submitted to the court had been made on her behalf. She told them she could make a decision if she had the information, but when they get the information, she does not make a decision or she later backpedals on her decision. She seemed to be having a hard time with cognitive/logical reasoning. Juror No. 4 thought either something was wrong with her thought process or she was intentionally trying to delay the process. Juror No. 4 noted Juror No. 1 made the comment that, “You know we have two weeks. What’s the rush? We have two weeks.” Juror No. 4 did not get the sense she would be able to make a decision at the end of two weeks. “[S]he just absolutely is incapable of making a decision.”
Juror No. 3
Juror No. 3 agreed Juror No. 1 should be removed from the jury. Juror No. 3 felt Juror No. 1 was unable to make a decision because “there’s something mentally wrong with her.” “She just doesn’t get it cognitively[.]”
Juror No. 2
Juror No. 2 abstained from the jurors’ vote to remove Juror No. 1. Juror No. 2 observed the majority of the jurors were very frustrated with her thinking process and admitted “I’m getting to that point myself as well.” Juror No. 1 was not making any progress “regardless of what direction.” Juror No. 2 felt it was more than just having a different opinion than the other jurors. Juror No. 1 was “just sliding back and forth” and “we can’t figure out where she’s at.” Juror No. 1 was not making any noticeable progress in any direction. Juror No. 2 did not know that Juror No. 1 was necessarily looking at any date as a deadline.
Summary of Juror Nos. 2-12
Nine jurors originally requested the removal of Juror No. 1. The two jurors who had initially abstained from requesting her removal joined the request when questioned by the court, making it a unanimous request. Seven of the jurors questioned by the court (Juror Nos. 3, 4, 6, 7, 9, 10, 12) opined that Juror No. 1 was incapable of making any decision, regardless of direction or verdict or even if it was just to be undecided. Two other jurors (Juror Nos. 8 & 11) expressed their opinion in terms of Juror No. 1 being “unwilling” to make a decision. One juror (Juror No. 2) stated Juror No. 1 made no progress, regardless of the direction. One juror (Juror No. 5) focused on her perception of Juror No. 1’s mental difficulties. The jurors did not agree on why Juror No. 1 was unable or unwilling to make any decision. Some thought she had mental or emotional issues; others thought she was playing a game or just wanting to fill up the estimated two week time for deliberations. None of the jurors based their dissatisfaction with Juror No. 1 on her failure to agree with them.
Juror No. 1
Juror No. 1 said the other jurors accused her of not being able to make a decision, but she “was not able to make a decision out of convenience.” She explained that she had reviewed the evidence they requested the previous day and changed her position, but when she considered how such change would affect her conclusion, she did not have the necessary abiding confidence. She went back to her original position. “And that’s when the jurors were livid.” She addressed them and recommended they should excuse themselves if they were feeling time constraints or pressure from the job. She denied she typically has trouble making decisions. She said she makes decisions “quite easily.”
Juror No. 1 said she understood the jury had two weeks to make their decision. The court explained it was only an estimate and that the jury was not required to take that amount of time. The jury could take a longer or shorter amount of time. There were no time constraints if everybody agreed progress was being made in making a decision. Juror No. 1 said she had been under the impression the jury would meet back in court after the two weeks expired to give their decision. She now understood that was not the case. Juror No. 1 assured the court she was capable of expressing her opinions to the rest of the jurors and capable of making a decision. She thought the other jurors were frustrated because she was a little slower.
Juror No. 1 admitted she had used the word “game” in her discussion with the other jurors, but thought they had taken her words out of context. She explained she meant the other jurors were treating this as a game and wanted her to come on their side. Otherwise, she would be a loser. It felt “like a game in the fact that we’re picking teams and sides.”
Juror No. 1 expressed surprise when told the bailiff thought he overheard her tell Juror No. 9 she was going to sue her. Juror No. 1 denied making any threat to sue anyone. She denied ever saying during deliberations that she was experiencing a tremendous amount of emotional pain.
The court cautioned Juror No. 1 that any decisions were to be based on the evidence at trial and not on emotions or life experiences. Juror No. 1 agreed, but the court noted some hesitancy. Juror No. 1 said it was because she was concerned about other jurors being more emotional than they should be. She believed she was still able to continue deliberating with this jury and make decisions based on the evidence.
The Bailiff
The bailiff was sworn and stated for the record his observations when the jury was leaving on the previous evening. He stated the jury foreperson had a piece of paper in her hand when he walked into the room. Juror No. 1 said to the foreperson: “Are you going to -- do you plan on giving him that piece of paper?” The foreperson told her that she still needed to sign it or it was not completed yet. The bailiff told everyone it was time to go. As the jurors filed out of the room, the foreperson handed him the piece of paper. As soon as she did so, Juror No. 1 came up right next to the foreperson and made a statement to the effect of, “If you give that to him, I’ll sue.” The foreperson looked at Juror No. 1 and said, “We’ll take care of this first thing in the morning.” Then both of them walked out. The bailiff described both jurors as agitated.
Further Interview of Juror No. 9
The court brought Juror No. 9 back into the courtroom to question her further about the comment overheard by the bailiff. Juror No. 9 confirmed she handed the note she wrote the day before to the bailiff on the way out for the evening recess. The jurors told Juror No. 1 exactly what the note said. When Juror No. 1 asked if she was supposed to come back, they told her she definitely needed to come back as it was the court, not the jury, who decided if she continued. It appeared to Juror No. 9 that Juror No. 1 was not upset, but felt relieved. Juror No. 9 said Juror No. 1 did not threaten to sue her.
The Trial Court’s Decision
After hearing from the parties, the trial court concluded there was no juror misconduct or at least misconduct rising to the level that would warrant Juror No. 1’s dismissal and agreed the question was whether Juror No. 1 was incapable of performing her duties. The court felt Juror No. 1’s credibility was an important factor to be considered on that issue. The court found Juror No. 1 was not credible and it believed the other jurors’ description of the comments made in the jury room. The court felt the comments of the jurors described Juror No. 1 as unable to assist them in making basic decisions for either intentional reasons or emotional or mental health reasons. Based on the record, the court concluded Juror No. 1 was unable to decide what happened in this case based on the merits of the case. She was unable to make a decision because of factors and reasons outside of the evidence. The court acknowledged Juror No. 1 believed she could continue to perform her duty as a juror, but the court did not believe her. It granted the prosecution’s request to dismiss her under Penal Code section 1089.
The prosecutor requested the discharge of Juror No. 1 on the basis of her inability to perform the duties of a juror in this case. Counsel for defendant Christopher suggested there was not enough to warrant removal of the juror.
B. Analysis
Defendant Christopher claims the trial court erred in discharging Juror No. 1 as the other jurors’ complaints about Juror No. 1 were really just expressions of their impatience with the failure of Juror No. 1 to agree with them that defendant Christopher was guilty, that Juror No. 1 participated in deliberations to some degree, and that even if she was not deliberating well or was employing faulty logic, discharge was not justified. Defendant Christopher contends Juror No. 1 reasonably explained her comment regarding deliberations being a “game,” that her comment should be viewed as “an awkward attempt to defend herself against eleven aggravated jurors[,]” and that such an isolated comment hardly justified her removal. Defendant Christopher contends it was highly improper to remove Juror No. 1 based on Juror No. 1’s statement of her emotional pain. At oral argument, defendant Christopher contended the trial court asked the wrong question by focusing on whether Juror No. 1 could make a decision. Instead, the sole question should have been whether Juror No. 1 was deliberating. At argument, defendant Christopher took the position that because Juror No. 1 was physically present and communicating with the other jurors, she was deliberating and so could not be discharged.
We conclude the record demonstrates the trial court properly understood the issue to be whether Juror No. 1 was incapable of performing her duties and that substantial evidence supports the trial court’s conclusion that Juror No. 1 was not capable of doing so. The record supports a conclusion Juror No. 1’s apparent participation in discussions with the other jurors was a facade and not an effort to consider the evidence, i.e., to deliberate. (The word “deliberate” is defined by the Merriam-Webster’s Collegiate Dictionary (11th ed. 2006) at p. 329 as “careful and thorough consideration.”) Therefore, the trial court did not abuse its discretion in discharging her and replacing her with an alternate.
“Pursuant to Penal Code section 1089 and Code of Civil Procedure section 233, ‘. . . the court, upon “good cause shown,” may discharge any juror “found to be unable to perform his duty” at any time during the trial. . . . The determination of “good cause” rests in the sound discretion of the court [citations], and the court’s finding thereof will be upheld if substantial evidence supports it [citation].’ [Citation.]” (People v. Thomas (1994) 26 Cal.App.4th 1328, 1332-1333; accord People v. Holloway (2004) 33 Cal.4th 96, 124-125.) A trial court may discharge a juror “if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” (People v. Cleveland (2001) 25 Cal.4th 466, 484 (Cleveland).) However, “caution must be exercised in determining whether a juror has refused to deliberate.” (Id. at p. 475.) “[A] court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecution’s evidence.” (Id. at p. 483.)
In Cleveland the California Supreme Court rejected the use of the federal standard for consideration of juror discharge. (25 Cal.4th at p. 484.)
“A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.” (Cleveland, supra, 25 Cal.4th at p. 485, italics added.)
Applying these principles, we conclude the record supports the trial court’s decision here to discharge Juror No. 1 because she was either unwilling or unable to make a decision. The trial court expressly found Juror No. 1 not to be credible and it believed the other jurors’ description of what was happening in the jury room. (People v. Diaz (2002) 95 Cal.App.4th 695, 704 [trial court entitled to make credibility finding].) Viewed through this credibility finding, the nature of the other jurors’ comments about Juror No. 1 reveals Juror No. 1’s participation in deliberations was illusory. While the other jurors initially thought Juror No. 1 needed read-back of the evidence and more time for consideration of the evidence, they quite quickly discerned that she was just going through the motions. She was not actually thinking about the evidence or considering it. She was playing a game, keeping the others guessing, and arbitrarily extending their discussions to fill the available time. Her questions and comments were not genuine or sincere. She was not honestly trying to resolve any questions she had about the evidence or law, but was manipulating the process because she was enjoying being the center of attention or she wanted to prolong jury deliberations to stave off her return to work. The problem was not that Juror No. 1’s opinion differed from the rest of the jurors, but that she had no real opinion. She was not making progress toward any decision “regardless of what direction.” Even when told “undecided” was an option, she would not commit to even that much. She either did not want to or could not make any decision based on something outside the facts and law of the case.
This case is not similar to the cases on which defendant Christopher relies.
In Cleveland, supra, 25 Cal.4th 466, the jury sent a note to the trial judge complaining that one juror “does not agree with the charge and does not show a willingness to apply the law.” (Id. at p. 470.) The trial court individually questioned the jurors, who complained the juror was not deliberating, did not want to discuss the elements of the offense in the steps outlined in the instructions, would discuss issues “that had nothing to do with the facts at hand or the case[,]” was “taking [an] unreasonable interpretation[,]” contradicted what the other jurors would say, and would not answer their questions. (Id. at pp. 470-473.) The trial court discharged the juror on the basis that he was not “functionally deliberating.” (Id. at p. 473.) The Supreme Court concluded the trial court abused its discretion “because the record before us does not establish ‘as a demonstrable reality’ that Juror No. 1 refused to deliberate.” (Id. at p. 485.) The trial court’s questioning of the jurors showed “the juror simply viewed the evidence differently from the way the rest of the jury viewed it.” (Id. at p. 485.) “His methods of analysis differed from those of his fellow jurors, and his approach to deliberations apparently frustrated his colleagues.” (Id. at p. 486.) While it was possible he “employed faulty logic and reached an ‘incorrect’ result,” it could not properly be said he refused to deliberate. (Ibid.)
In People v. Karapetyan (2003) 106 Cal.App.4th 609, a juror who “had been deliberating fully and completely for more than five days” was accused of refusing to deliberate after he refused to change his view and vote. (Id. at p. 621.) The other 11 jurors claimed the holdout juror was unable to understand the instructions, “fought every single thing on every single issue[,]” needed “‘to dissect every single word[,]’” “could not make the simplest of decisions[,]” wanted to bring the instructions to a library and study them, could not decide because of his religious beliefs, made constant references to television and movies, appeared “to be in a great deal of agony[,]” “had a different view of the evidence and felt as if everyone was against him[,]” was “incapable of making a simple decision[,]” and frequently changed his mind. (Id. at pp. 613-616.) The Court of Appeal concluded discharge of the juror was error and reversed. “The real problem, which should have been apparent to everyone in the courtroom, was that, after more than five days of deliberation, the jury was deadlocked at 11 to one for guilt[.]” (Id. at p. 621.) The 11 jurors only raised questions about the holdout juror’s ability to deliberate when he indicated he was not going to change his view and vote. Discharge of the juror in such a situation was error. (Ibid.)
In People v. Elam (2001) 91 Cal.App.4th 298, the foreperson sent a complaint to the trial court about a “‘perception problem’” or “‘possibly a language understanding’” of one of the jurors after half a day of deliberation. (Id. at pp. 313.) When questioned, the other jurors complained that the juror had problems with the English language, did not understand the process or law, frequently changed his mind, could not give the other jurors a reason for his position and was illogical. (Id. at pp. 314-316.) The trial court discharged the juror based on the language problem. (Id. at p. 316.) The Court of Appeal reversed, concluding the complaints about the juror did “not necessarily demonstrate inadequate comprehension of the English language as opposed to legitimate disagreement over the meaning to be given certain instructions, interpretations of the law and evidence.” (Id. at p. 317.) The complaints were “closely akin to the complaints registered in People v. Cleveland, supra, 25 Cal.4th 466, which the Supreme Court found insufficient to justify discharge of a juror.” (Ibid.)
Finally, in People v. Bowers (2001) 87 Cal.App.4th 722, this court concluded the trial court’s discharge of a juror was an abuse of discretion and reversed the judgment. (Id. at pp. 724, 735.) “While there was some evidence Juror No. 4 was inattentive at times during the deliberations and did not participate in the deliberations as fully as others, the record shows this conduct was a manifestation, effectively communicated to the other jurors, that he did not agree with their evaluation of the evidence--specifically, their credibility determinations.” (Id. at p. 730.) We cautioned “[i]t cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote, which is precisely what Juror No. 4 did.” (Id. at p. 735.) Since the juror “participated to some extent in [the jury’s] discussions, expressed the reasons for his decision, and remained willing and able to vote concerning a verdict,” we could not say the record showed a “demonstrable reality” that the juror was unable to perform as a juror. (Ibid.)
The thread running through each of these cases is that the erroneously discharged juror had evaluated the facts and law of the case and was expressing a view of the case, which the other jurors could neither accept nor apparently change. Their complaints about the discharged juror in context were really expressed frustrations with difficult deliberations and differing opinions. In contrast here, the jury had spent considerable time trying to get Juror No. 1 to make any decision. All the read-back and questions to the court were made for her benefit, but she failed to come to any decision, “regardless of what verdict [they] were looking at.” Contrary to defendant Christopher’s characterization of Juror No. 1 as a model juror unhurriedly working through the evidence, coming to what the other jurors felt was an erroneous decision by possibly flawed mental processes, the record demonstrates Juror No. 1 was not honestly struggling to make a decision, but was playing her own game on a timetable she imposed for some reason outside of the evidence. She was unwilling or unable to decide the case based on its merits.
The record supports the trial court’s conclusion, “‘as a demonstrable reality’” (Cleveland, supra, 25 Cal.4th at p. 485) that Juror No. 1 was incapable of performing her duties as a jury in this case. The trial court, therefore, did not abuse its discretion in discharging her.
IV.
The Trial Court Erred In Failing To Award Defendants Credit For Their Pretrial Custody Time
The probation reports for defendants showed that each of them had been in custody for 828 days at the time of sentencing. The trial court, however, did not award any time credit for such custody time. The trial court stated: “Pursuant to Penal Code section 2933.2 subsection (c), neither defendant is entitled to time credits.” Both defendants contend this was error. Respondent concedes it was error. We agree.
Section 2933.2 prohibits the award of worktime and conduct credit accrued between arrest and conviction (§§ 2933.2, subd. (c); 4019), as well as worktime credit accrued in prison (§§ 2933.2, subd. (a); 2933), for persons convicted of murder. Section 2933.2 does not affect a defendant’s entitlement to custody time for presentence jail time under section 2900.5, subdivision (a). (People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.) “A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citation.]” (Id. at p. 647.) We shall award each defendant 828 days of presentence custody credit and shall direct the trial court to prepare a corrected abstract of judgment showing this award.
V.
Correction Of The Abstract To Reflect The Sentence On Their Second Degree Murder Convictions
We note an error in the abstract of judgment prepared for each defendant. The trial court imposed but stayed a 15-years-to-life indeterminate prison sentence on both defendants for their second degree murder convictions. The abstracts of judgment reflect a sentence was imposed but stayed pursuant to section 654 for such convictions. The abstracts fail, however, to reflect the term of the stayed sentence was 15 years to life. We shall order the abstracts corrected to expressly include the term of the stayed sentence.
This issue seems noncontroversial and the court has resolved it summarily in this opinion, in the interest of judicial economy. Any party aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgments are modified to give defendants Gulley and Christopher each 828 days of presentence custody credit. (Pen. Code, § 2900.5.) As modified, the judgments are affirmed. The trial court is directed to amend the abstracts of judgment to reflect the modification of custody credit and to reflect the term of the stayed sentence on defendants’ second degree murder convictions was 15 years to life and to forward a certified copy of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P.J., MORRISON, J.