Opinion
F079577
05-11-2020
THE PEOPLE, Plaintiff and Respondent, v. PETER ROBERT NORIEGA, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR-01707E)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
After a stabbing attack on a jail inmate—and after a mistrial caused by a hung jury—defendant Peter Robert Noriega was convicted of being an accessory after the fact (Pen. Code, § 32) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). He had served two prior prison terms. He was sentenced to a term of nine years for the current offense, plus an additional year for an offense in a separate case, for an aggregate term of 10 years.
Undesignated statutory references are to the Penal Code.
Noriega raises three issues on appeal. First, he contends the trial court, during the jury's deliberations, improperly relieved a holdout juror and substituted an alternate, who then voted with the other 11 to convict. Second, he contends his two prior prison term enhancements must be stricken pursuant to newly enacted Senate Bill No. 136. Third, he contends the trial court's imposition of assessments, fees, and fines without determining his ability to pay violated his due process rights. The People concede error on all three issues and agree with Noriega his conviction should be reversed and the matter remanded for a new trial.
Noriega was tried both times with four codefendants. In an unpublished opinion in the appeal of one of his codefendants, Jose Sanchez, we held the trial court abused its discretion in removing the holdout juror, and we reversed Sanchez's conviction on that basis and remanded for a new trial. (People v. Sanchez, F075385 (Sept. 17, 2019), slip opn. at pp. 16-22 (Sanchez).) The People posit in their brief that our opinion in Sanchez constitutes law of the case on this issue and compels reversal of Noriega's conviction. Noriega adopts the People's position in his reply brief. Without deciding whether the law of the case doctrine applies here, we reaffirm our conclusion in Sanchez that the trial court abused its discretion in relieving the holdout juror and we reverse Noriega's conviction on that basis. Our conclusion on that issue moots Noriega's other two issues.
STATEMENT OF THE CASE
An information filed in Merced County Superior Court charged five defendants in connection with an inmate assault in the Merced County jail. Noriega was charged with being an accessory after the fact (§ 32), and it was alleged he acted for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The information also alleged as to Noriega two prior prison term enhancements (§ 667.5, subd. (b)).
The five defendants were tried together. The first trial ended in a mistrial when jurors were unable to reach a verdict on any of the defendants. After the second trial, the jury convicted Noriega and found true the gang enhancement allegation. In a separate proceeding, the trial court found true the enhancement allegations that Noriega had served two prior prison terms within the meaning of Penal Code section 667.5, subd. (b).
Prior to sentencing, the trial court denied Noriega's motion for a new trial based in part on the trial court's substitution of an alternate juror for another juror upon the court's finding the original juror had refused to deliberate. At sentencing, the trial court imposed a term of nine years on the accessory crime as follows: the upper term of three years, plus four years for the gang enhancement, and two one-year terms for each of the two prior prison terms. The court also imposed fines and fees totaling $2,770. Additionally, pursuant to a plea agreement in a separate trailing case, the court sentenced Noriega to an additional consecutive year in prison and imposed fines and fees totaling $370. Thus, Noriega's aggregate prison term was 10 years.
FACTS AND PROCEDURAL HISTORY
I. The Assault
Noriega was in a cell in the Merced County jail with seven others, including the victim D.B., and Noriega's codefendants Jose Sanchez, Christopher Burrington, Roberto Manzo, and Jose Vasquez. All, including Noriega, were Norteño gang members.
A correctional officer heard someone screaming for help and came to the cell. D.B. was lying on the floor bleeding, with multiple puncture wounds. Two inmates were in their bunks. Noriega came over and wrung a towel out over the cell gates and the floor, rinsing away some of the blood.
D.B. survived his injuries and gave a recorded statement to Deputy Larry Hudec while at the hospital, two days after the attack, which was played for the jury. According to D.B., Sanchez was the cell's shot caller and had imposed discipline on D.B., placing him "on freeze" for some kind of prohibited behavior. D.B. had to stay in his bunk all day while two gang members guarded him; they followed him when he went anywhere. As part of this punishment, on the day in question, Sanchez ordered D.B. to do 250 pushups with him in sets of 25. Sanchez would do 25 and then D.B. would do 25, and so on. While D.B. was doing one of his sets, he became exhausted and stopped. Then he heard someone yell, "Get that motherfucker," whereupon Vasquez held him down while Manzo stabbed him with a shank. While this was happening, Burrington flushed the toilet repeatedly to cover the noise. When guards were on their way, Manzo threw the shank in the toilet as Burrington continued flushing. Noriega and some of the others tried to clean the blood off Manzo. Manzo's shirt was ripped off and flushed down the toilet. D.B. saw Vasquez holding him down, Manzo stabbing him, Burrington flushing the toilet, and Noriega helping to clean blood off Manzo; but he did not know who said "Get that motherfucker," and did not see anything Sanchez might have been doing. The other two cellmates, S.A. and J.G., lay in their bunks and did not get involved.
Following a prior mistrial, the district attorney filed the presently operative information charging Sanchez, Burrington, Manzo, Vasquez, and Noriega with multiple offenses. Noriega was charged with being an accessory after the fact, plus a gang enhancement and two prior prison terms.
The first trial ended in a mistrial on October 18, 2016. On attempted murder, the jury split nine to three in favor of convicting Burrington and eight to four in favor of convicting the other defendants. On assault with a deadly weapon, the jurors split nine to three in favor of convicting Sanchez and ten to two in favor of convicting the others. The trial court declined to relieve and replace any of the jurors.
At trial, D.B. testified that he did not know any of the defendants and did not remember anything about the attack except that he was stabbed, he was a Norteño in custody at the time, and the attackers were other Norteño inmates. He also said he did not remember being interviewed by police. When the recording of his police interview was played, he denied recognizing his own voice.
Deputy Hudec, the same deputy who interviewed D.B. at the hospital, testified he went to the jail about an hour after the attack to investigate. He spoke to and examined the seven inmates, besides D.B., who were in the cell at the time of the attack. He also photographed them, photographed and collected their clothing, and testified about some of the clothing items and some of the photographs. Sanchez had stains the deputy suspected were blood on his shirt and shorts. Burrington had what looked like blood on his shirt. Manzo had what appeared to be blood on the top of one of his shoes. Vasquez also had some apparent blood on his shirt and the top and side of a shoe. The deputy did not point out any apparent blood stains on the photographs of Noriega. He did see seeming blood spots on the clothing of J.G. and S.A., the uncharged cellmates. The blood on S.A.'s shorts was the only blood the deputy described as "splatter." The items of clothing were never tested to determine whether the spots really were blood, or how old the blood was, if it was blood. Hudec conceded that without testing, he could not really know whether the stains were blood.
Hudec did not look for blood under anyone's fingernails. "I didn't get that far," he testified; "It was just myself that night, and this took several hours. And I would have been there for quite some time if I went into that detail." He did not attempt to collect any DNA samples.
At the hospital, Hudec later asked D.B. why J.G. and S.A. would have blood on their clothes if they had not been involved and were in their bunks, which were in a separate area of the cell. The deputy testified, "He told me they weren't involved in it, so I didn't press the issue." This part of the discussion was not included in the recorded interview presented at trial; the deputy testified he had some discussion with D.B. before he started recording. When asked whether he thought it was odd that S.A. would have blood spatter on him when he was in his bunk in a separate room when the stabbing happened, the deputy said yes. He speculated that S.A. could have put someone else's shorts on after the attack. He suggested something similar about the blood on J.G.'s shorts, adding that an inmate with evidence on his clothes and expecting to be accused of something might trade clothes with another inmate who is not in similar danger.
It turned out, however, that the clothing the inmates were wearing when Deputy Hudec met with them had dubious evidentiary value, as at least some of the inmates apparently had changed and some of the original clothes apparently had been soaked in water, and the crime scene had not been preserved. Deputy Kirk Lanford, who arrived at the scene before Hudec, noted the inmates had been moved, the cell door was open, the area had not been marked off with tape, and no one was guarding the walkway. A wet bedsheet and a shoe were in the walkway outside the cell. Inside the cell, there still were some streaks of blood on the floor, but the floor appeared to have been mopped or wiped. The water in the sink was running. In the shower was a bucket filled with water in which some cleansing agent had been dissolved. Soaking in the water were two pairs of shoes, two pairs of shorts, and a shirt. Lanford put these items in plastic bags and took them to a back room at his unit's office, where he laid them out for two days to dry and then stored them in evidence bags.
Correctional Officer Janet Jennings testified she came to the crime scene when she heard D.B. screaming and remained there until paramedics transported him away. When he was taken away, Jennings followed the gurney to the medical office to assist with paperwork before D.B. was taken to the hospital. Jennings was away from the cell for 15 or 20 minutes. When she returned, some other correctional officers were there, taking pictures and waiting for Hudec and Lanford to arrive. The inmates had been moved to other rooms. The cell had been cleaned up. The extensive blood spatter on the floor and cell gates was mostly gone. She did not know how or by whom this had been done.
The jury was shown a surveillance video of the hallway or walkway outside the cell, beginning at the time when Jennings responded to D.B.'s screaming. It showed D.B. being tended by the nurse and then taken by the paramedics; the inmates were handcuffed and moved out of the cell to interview rooms. Toward the end of the clip shown to the jury, water can be seen splashing from the adjacent cell into the cell lately occupied by D.B. and his cellmates. Then a sheet or towel is cast from the adjacent cell onto the floor of D.B.'s cell and reeled back in. The video also showed trashcans in the hallway, which inmates could reach to throw trash into from inside the cells, according to the testimony of Israel Rosales, a correctional officer who described what was happening in the surveillance video. One of the trash cans could be seen being pulled toward the adjacent cell by an inmate. Officer Rosales pointed out flashes of light coming from the adjacent cell, which he said were made by mirrors the inmates in the adjacent cell were using to try to see what the staff was doing. As far as he knew, no one ever investigated what, if anything, was put in the trash can. He testified that after the defendants and their two cellmates were moved to interview rooms, the cell door was closed and locked but no staff remained nearby.
As mentioned above, however, Officer Jennings returned after all the inmates had been moved to find there were staff members in the walkway and the cell had been cleaned up; and Deputy Lanford arrived after that and found the cell door was open, no staff were present, a wet bedsheet and a shoe were on the floor in the walkway, and the water in the cell sink was running. When Deputy Hudec arrived still later, he observed the floor had recently been mopped and was still damp. He knew Deputy Lanford would not have mopped it and he said there would not have been any opportunity for the inmates of the cell to have mopped it before they were moved. He did not know how it happened. One of the defense attorneys asked him: "So someone got in the cell and did something to it, right?" but an objection was interposed and Hudec did not answer. Counsel asked: "Did you have any information about whether other people who were housed in that area could get into each other's cells?" Hudec asked for clarification: "Did I have information?" Counsel explained: "Did you have anybody say, 'Hey, you can [j]immy this lock'?" Hudec said yes. Counsel asked another question on this line, but an objection was made and sustained. Rosales testified that when Hudec was finished photographing the defendants and collecting their clothes, he (Rosales) was ordered to secure the doors of the cells on that cell block with chains and padlocks. He was asked why this would be necessary, but objections were sustained.
The questions of how the cell got cleaned before Jennings returned from the medical office, who opened the cell after Rosales locked it and Lanford arrived to find it was open with items having migrated onto the walkway and the sink left running, how the clothes and shoes came to be left to soak in a bucket of water with cleanser in the shower, and whose clothes those were, were not resolved during the trial. The record does not address the role of the inmates in the neighboring cell, who in the surveillance video appeared to be trying to meddle with the crime scene evidence and surveil the staff.
A Merced County probation officer, Alejandro Cruz, testified as the prosecution's gang expert. As part of the presentation of evidence in support of the gang enhancements, the prosecutor posed a hypothetical based on the prosecution's case and asked the expert whether the crime would have been committed for the benefit of or in association with a criminal street gang. The expert said yes; such an action would be a "removal"—an assault or killing carried out to punish a gang member in bad standing. He explained the forced push ups were part of the attack plan as they would tire out the victim and render him unable to fight back, and the victim's increased heart rate would make it easier for him to bleed out and die. Each gang member had a specified role in the attack, including holding the victim, knifing the victim, flushing the toilet, and clean up.
The defense also called an expert witness, a former gang member from the early years of Nuestra Familia in the 1970's, who had earned a doctorate and become an author and consultant on the subject. He testified that the pushups probably were not imposed on D.B. to tire him out, since he was small and there were several gang members present who could easily overpower him, among other reasons. He also testified that an assault was one of the possible punishments for a failure to complete required exercise, suggesting the assault was a disciplinary response to the failure to finish the pushups, instead of the failure having been set up intentionally to facilitate the assault. Another point he made was that "get that motherfucker" sounded to him like something an inexperienced and overexcited gang member might say, not a more sophisticated one.
II. Jury Deliberations
On the second day of jury deliberations, the jury foreperson, juror no. 10, sent a note to the court. It stated:
"We have a juror who cannot recall any testimony given by any witness. He says he will not pay attention to any testimony, even if it's re-read by the Court Reporter. The remaining jurors have discussed the testimony given, reviewed the evidence and have reached a conclusion, but no verdict can be reached because the 1 juror is refusing to listen to the testimony again. He says he heard it but doesn't remember any of it."
The court called juror no. 10 into the courtroom and asked her to explain what happened. Juror no. 10 said juror no. 12 disbelieved the prosecution's evidence and would not explain why. During that day and the previous day, juror no. 10 said, the jurors "would all talk about [the case] and, like, kind of go around and take into consideration when we talked about each part of the evidence, [and juror no. 12] would just say[,] 'I don't believe it.'" The other jurors asked juror no. 12 to give reasons, but he gave none, saying only 'I don't believe any of it.'" Juror no. 10 challenged him:
"So fine. I asked him[,] I said, well[,] 'What about the testimony?' He goes 'I don't believe any of it.' So I asked him, 'tell me what someone testified about, anyone. Don't care who it was. Tell me what the person on the stand testified.' And he said he couldn't. So I asked him[,] '[D]id you
hear it all?' He said, yeah, he heard it all. 'Then just tell me what one person said.' He said he couldn't."
The court asked whether juror no. 12 appeared to have any medical or mental problem. Juror no. 10 said the other jurors had asked him whether he "has any problems," but he said no. "There's nothing wrong with him. He just doesn't believe anything," juror no. 10 said.
The court proceeded to call in several more jurors. Juror no. 7 said juror no. 12 was "set in his opinion" but "really won't describe in very much detail why he feels the way that he does, and so it makes it hard for the rest of us to know how to proceed. . . ." He would "listen in" when the other jurors discussed the evidence, but when asked "why he has an opinion that he has he really doesn't give us any detail about why. It's just what I think." For these reasons, juror no. 7 felt juror no. 12 did not "really" participate in the jury's discussions of the evidence. The other jurors tested him to see if he could state what this or that witness had said, but juror no. 12 said he did not know. The other jurors asked him "if it would help to clarify things for him" if they had some testimony read back by the court reporter. Juror no. 12 did not say "no, don't do it," but said he had "just listened to it" and otherwise didn't "really want to respond." Juror no. 7 did not think juror no. 12 had any mental or physical health issue. The court asked, "There's something else going on?" Juror no. 7 said, "I would say so." The court asked, "So is it your understanding that this juror's not participating in deliberations and discussing the evidence and reasons for opinions that he has or conclusion[s] that he has?" The juror replied, "He doesn't go into any detail. It's just, '[T]his is what I think.'"
Juror no. 2 was called in next. Juror no. 2 said juror no. 12 "seems like he made a decision, didn't want to listen to any other conversations with us." He did not give reasons. The other jurors tried to "get him involved in a conversation," but were not successful. Juror no. 12 "just shuts down, or closes off."
The court called in juror no. 12 and told him other jurors had said he was not willing to discuss "the testimony and reasons for opinions in the deliberations." Juror no. 12 said, "I did. I already told them my opinion." They had deliberated all the previous day starting at 10:00 a.m., and continued that day until 11:30 a.m. (It was 2:03 p.m. when the court received the foreperson's note.) Juror no. 12 said he participated in the deliberations and expressed his opinions about the evidence. There had been no exchange of views since 11:30 that morning because, as juror no. 12 said, "I feel we already decided," and "[e]verybody has their own opinion."
The court next questioned juror no. 1, who described juror no. 12's behavior in deliberations as "just no committing to an answer," "just not giving facts or reasons for opinions," and "just no help there to understand where the conclusions [are] coming from." Deliberations apparently started the day before with each juror being given an opportunity to state views. "From the moment we talked, we just started to come to—everybody—whatever is agreeing to our not to agree to. And so we make sure that everybody has a voice. So as soon as that person had a voice, it was clear there was no reasoning." Juror no. 1 said "[n]ot really" when asked whether juror no. 12 "discussed his assessment of evidence or analysis of the evidence yesterday throughout the day at all." Juror no. 1 explained that the "only time when [juror no. 12] would give his input really" was the point in the beginning when "everybody got an opportunity to speak." He only gave "an opinion" about his conclusions, and no analysis of any particular witness or evidence. The other jurors explained their own positions and the reasons for them, but juror no. 12 "doesn't care what anybody says. He has his opinions, but he can't reclaim [sic] any of the testimony, which that's what we're here for is to reclaim what we heard, so he's not defending his answer, pretty much, which is frustrating to everybody else because we all have our own opinions, but we can't be the use our [sic] opinions here. We have to use the facts. And we have to—if we made a decision on something, we should be able to explain it or justify our decision. And I just feel it's not being reasonable here." Juror no. 1 did not think further deliberations would lead to a verdict because "[juror no. 12's] mind's set."
Juror no. 3 was called in, and said juror no. 12 "doesn't agree with what is going to [be] a felony crime. He will not go to that level," and he gave no reasons. The court asked if juror no. 12 had discussed the evidence. Juror no. 3 answered, "We went down very factual on identifying credibility with what the victim says versus what [the defense expert] says, identifying all the pictures. I mean, everything. We went down. We looked at all the pictures. Again, everything. And he's not willing to budge." The court asked whether juror no. 12 participated in the item-by-item discussion of the evidence. Juror no. 3: "The only comment we get is that he doesn't believe the victim's statement, but there's no reasoning on why or how come. Then we collaborate, show that, okay, what this person, the victim, stated here actually was verified by law enforcement here. These statements equal." But juror no. 12 was unpersuaded, and held to that position from the beginning. The court asked whether juror no. 12 participated in the discussion while the jury was deliberating from 10:00 a.m. to 3:30 p.m. the day before. Juror no. 3 said the other jurors referenced their notes and went through what they had heard and gradually came to a consensus among themselves; juror no. 12 listened to the conversation, but when asked his view, he continued to state that he did not believe the victim's recorded statement. He said he believed the victim's police interview was "staged."
Juror no. 4 claimed juror no. 12 said he "didn't hear who said what." The court asked for clarification, and juror no. 4 said juror no. 12 said he did not believe witnesses but had no reasons. The court observed that rejecting a witness's testimony as incredible is expressing an opinion about evidence; it is not the same as not hearing the evidence. Juror no. 4 retracted his remark about juror no. 12 not hearing and said, "He acts as if [he] didn't know what was going on"; further, juror no. 12 "said he didn't believe anybody basically," and was "out of it." Juror no. 12 had been saying he did not believe any witnesses from the beginning, and had even said it in the courtroom. "He thought it was a set up," said juror no. 4. "That's the word he used. When they—like when they interviewed [D.B.]."
The court asked juror no. 5 whether all the jurors were participating in deliberations. Juror no. 5 replied: "We are, except like we have enough evidence for everything that we need [except] one person, which I think was number 12. He's the one having problems with like one of the statements that they said, or like the whole entire thing. He's just judging the whole entire thing off that one thing. He doesn't want to do anything more after that."
Juror no. 6 said juror no. 12 was not participating in deliberations because "[h]e just has his mind made up." He did give a reason for his opinion: the lack of credibility of a particular witness. Juror no. 8, by contrast, said there was one juror who disagreed with the others but offered "no reasoning." When specifically asked by the court, however, juror no. 8 conceded that the one juror based his conclusion on a lack of believability of some evidence.
Defense counsel moved for a mistrial based on a hung jury. The prosecutor requested an alternate be substituted for juror no. 12. The court heard arguments of counsel and decided it would adopt one or the other of those courses, rather than asking the jury to continue trying to reach a verdict.
III. Juror Substitution
The court announced its decision the next day. It correctly observed that to relieve a juror for refusal to deliberate, the evidence before the court must amount to a "demonstrable reality" the juror refused to deliberate. (People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong).) The court recognized that the reason for juror no. 12's position was that he did not believe D.B.'s statement to the police. The court acknowledged that the case had "some built-in problems" arising from the victim's debatable credibility, and at least implied that disbelieving his police statement could be a legitimate reason not to convict the defendants.
In surveying the other jurors' remarks, however, the court emphasized their descriptions of the fact that, having stated his conclusion and the reason for it early on, juror no. 12 had little else to say and stood firm against their arguments, an attitude they described as not participating and being unwilling to listen. Accepting that construction of juror no. 12's behavior, the court found he had "express[ed] a fixed conclusion at the beginning of deliberations and refus[ed] to consider other points of view." The court denied the motions for mistrial, released juror no. 12, and put an alternate in his place. The next court day, the jury found Noriega guilty of being an accessory after the fact, and found the gang enhancement allegation true.
The other defendants were convicted of assault with a deadly weapon and acquitted of attempted murder. Gang enhancement allegations were found true for each defendant. A great bodily injury enhancement allegation for Manzo resulted in a hung jury.
DISCUSSION
I. The Trial Court Abused its Discretion in Discharging the Holdout Juror
The basis for the substitution of the alternate juror for the holdout juror was the court's finding, based on testimony of other jurors, that the holdout had refused to deliberate. We held in Sanchez the testimony was not sufficient to support this finding, and we reaffirm that holding here. The holdout explained to the court that he expected to vote to acquit because he found the victim's police statement—which the victim recanted at trial and which was the only evidence with any significant tendency to show which of his seven cellmates were involved in the attack—not to be credible. Obstinate though the holdout might have been, the other jurors' testimony did not support the proposition that he failed to deliberate before forming this opinion. He was not obliged to come around to their contrary view. We reverse on this ground and remand for a retrial.
A. Doctrine and Standard of Review
In Armstrong, supra, 1 Cal.5th 432, our Supreme Court considered in depth the question of when it is appropriate to dismiss a juror and substitute an alternate on the ground the juror had refused to deliberate. Armstrong was a capital murder case in which the defendant was convicted of three first-degree murders with multiple murder, gang murder and drive-by murder special circumstances, plus enhancements for personal discharge of a firearm causing death; two premeditated attempted murders with firearm discharge enhancements; and six counts related to attempted witness intimidation, specifically torture with great bodily injury, robbery, burglary, assault with a firearm, and two counts of false imprisonment by violence. The jury returned death verdicts on the murders. (Id. at pp. 436-437.)
At the end of the second day of jury deliberations after the guilt phase, the court was informed the jury was deadlocked on all counts. After directing the jury to continue deliberating the next day, the court received several notes asserting that juror no. 5 was refusing to deliberate. Juror no. 5 sent the court a note saying juror no. 12 was biased. The court learned that juror no. 12 was a friend of the defendant's cousin and had failed to disclose the relationship during jury selection. It discharged juror no. 12 for implied bias and investigated the question of juror no. 5's alleged refusal to deliberate. (Armstrong, supra, 1 Cal.5th at pp. 444-445.)
The notes had indicated that juror no. 5 would not listen to other jurors' views, and said she believed the police were corrupt and she had friends who were gang members. One note said juror no. 5 was the cause of the deadlock. (Armstrong, supra, 1 Cal.5th at pp. 445-446.)
The court questioned several jurors individually. The foreperson said juror no. 5 was articulate and engaged with all the others in the beginning, but her remarks were excessively general, and when the others began to focus on specific aspects of the case she was indecisive and eventually got quiet. The foreperson said the jurors were taken aback by juror no. 5's comments about police officers' untruthfulness, but when the court asked whether she had made any statements during deliberations that indicated bias, the foreperson could not think of any. (Armstrong, supra, 1 Cal.5th at pp. 446-447.)
Juror no. 6 told the court juror no. 5 had looked at her phone or a book one or two times for a few minutes. Juror no. 5 had participated, but had come to a conclusion and was no longer listening or talking to the others. She said the police were sometimes untrustworthy, and she was acquainted with gang members and knew something about how they thought. (Armstrong, supra, 1 Cal.5th at pp. 447-448.)
Juror no. 11, having written a stern note about juror no. 5's failure to fulfill her obligation to consider all the evidence objectively, when questioned by the judge said only that juror no. 5 said she had gang member friends and believed police officers coached witnesses and manufactured crime scene evidence. (Armstrong, supra, 1 Cal.5th at p. 448.)
Juror no. 5 denied she had been reading a book during deliberations, and said she only used her phone on breaks, except that she sometimes used it to check the time during deliberations. She did not remember the court telling the jurors to turn their phones off during deliberations. She denied she had formed opinions so firm that she was unwilling to discuss the evidence, and claimed she was still engaging in discussions of the issues with the other jurors. She also denied she was biased for or against police or gangs. (Armstrong, supra, 1 Cal.5th at p. 448.)
Over defense objection and after hearing arguments of counsel, the court decided to discharge juror no. 5, finding good cause to conclude she was unable to perform her duty as a juror within the meaning of section 1089. It credited juror testimony that juror no. 5 had started out deliberating with the others, but had arrived at a fixed conclusion and would not deliberate further. It found that this conclusion was supported by jurors' remarks about juror no. 5 using her phone and reading a book, and it found juror no. 5's own remarks not credible, partly because she denied using her phone or reading a book during deliberations. After the court seated alternates for juror nos. 5 and 12, the jury deliberated for four days and found the defendant guilty as charged. (Armstrong, supra, 1 Cal.5th at pp. 449-450.)
Section 1089 provides in part:
"If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
The Supreme Court explained that although the standard of review for a trial court's discharge of a juror under section 1089 is labeled abuse of discretion, the reviewing court does not look merely for substantial evidence that the juror was unable to perform his or her duty, as it would under ordinary abuse of discretion review. A higher standard is required because the defendant's fundamental rights to due process, a fair trial by an unbiased jury, and unanimous verdict are at stake. These rights would be infringed if a juror were removed just because he or she declined to conform his or her views to those of a majority voting to convict. Consequently, although the reviewing court still must refrain from reweighing the evidence, the juror's inability to perform his or her duty must appear in the record as a demonstrable reality. This means the respondent must show the trial court actually relied on record evidence that "manifestly supported" the finding that the juror could not perform his or her duty. When the juror's inability to perform takes the form of a refusal to deliberate, examples of facts that would satisfy this standard include entering deliberations with a fixed conclusion and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate himself or herself physically from the other jurors. (Armstrong, supra, 1 Cal.5th at pp. 450-451.)
The juror remarks the trial court relied on did not satisfy this standard. The other jurors did not claim juror no. 5 entered deliberations with a fixed conclusion. Instead, they said she engaged at the beginning but then developed views in conflict with the views of the others and then engaged less. This is unremarkable and there is no rule that the jurors must reach harmonious conclusions to make up their minds all at the same time. "It is not uncommon, or grounds for discharge, 'for a juror (or jurors) to come to a conclusion about the strength of a prosecution's case early in the deliberative process and then refuse to change his or her mind despite the persuasive powers of the remaining jurors.' " (Armstrong, supra, 1 Cal.5th at pp. 452-453.) The trial court relied on jurors' statements about juror no. 5's cell phone and book, but the support those statements provided to the view that juror no. 5 was not participating was insubstantial. No one said anything worse than that she looked at her phone briefly a few times. Other juror comments the trial court relied on complained of juror no. 5's lack of objectivity, inability to narrow many possibilities down to a few, indecisiveness, and particular way of looking at things. But criticisms of a juror's manner of deliberating or skill in making arguments are not grounds for finding the juror refused to deliberate. The record the court relied on did not demonstrate a reality that juror no. 5 failed to deliberate. (Id. at pp. 453-454.)
B. Analysis
As we discussed in Sanchez, this case has several points in common with Armstrong and merits the same result. (Sanchez, F075385 (Sept. 17, 2019), slip opn. at p. 20.) Juror no. 12's refusal to deliberate does not appear in the record as a demonstrable reality. In essence, the trial court misinterpreted a firm position developed early for entering deliberations with a fixed conclusion, just as the trial court did in Armstrong. This is an ordinary case of a juror "'com[ing] to a conclusion about the strength of the prosecution's case early in the deliberative process and then refus[ing] to change his or her mind despite the persuasive powers of the remaining jurors.' " (Armstrong, supra, 1 Cal.5th at p. 453.)
In its oral statement of reasons for its ruling as well as in its questioning of the jurors, the court focused on juror no. 12's supposed failure to specify the evidence he was not convinced by and the reasons why he was not convinced. But the record failed to support the notion juror no. 12's reasons were obscure, or even that the other jurors perceived them as obscure. It is clear enough, both from the nature of the case and from the other jurors' remarks about juror no. 12, that the weakness for him was D.B.'s recorded interview. Arguably, juror no. 12 was correct to view this as the essential core of the prosecution's case, without which we would know only that D.B. was stabbed by one or more of the seven inmates in the cell with him.
Like the other jurors, juror no. 12 heard the audio recording of D.B.'s statement, had access to the transcript of it, and saw and heard D.B. testify that he did not remember making it and did not remember who attacked him. If juror no. 12 simply felt D.B. did not sound truthful or credible on the recording, there would have been little else he could say to justify his credibility determination.
Other jurors appeared to believe that they did better than juror no. 12 in articulating reasons for their opposing credibility determination. Juror no. 3, for example, seemed to believe he had demonstrated to juror no. 12 that D.B.'s statement was corroborated by law enforcement testimony, but, as far as the key question of which inmates did what is concerned, this is simply not so. Juror no. 5 faulted juror no. 12 for thinking nothing else the prosecution presented could save its case if D.B.'s statement were rejected. Yet apart from the evidence of blood on clothes—which, even had it been meaningful, would not have been consistent with the prosecution's theory, since there was blood on the clothes attributed to S.A. and J.G. and none on the clothes attributed to Noriega—D.B.'s statement was the only evidence that could even potentially have shed any light on which of the inmates were responsible. None of the prosecution's witnesses claimed to have any way of determining which of the seven cellmates were involved, or what their roles were, independent of D.B.'s statement.
It is not often, perhaps, that we have a case in which (a) an assault occurs in a locked room, (b) any one or more of the people in the room could have committed it except the victim, and (c) the assertions of one self-contradicting witness are virtually all there is to rely on for a determination of who the guilty parties are.
D.B. could have told the truth in his statement and then recanted at trial because he feared retaliation, or because he felt ashamed to snitch in open court, or because he expected the prosecution to offer him something in exchange for his testimony, and nothing was offered. Or he could have accused the wrong people deliberately in his statement because the police expressed interest in those people and implied a deal could be forthcoming if he named them, but then recanted at trial because no offer was made. Or he could have accused the wrong people deliberately for reasons of his own, and then recanted at trial due to fear or shame, or because he had a change of heart and hoped to protect both the innocent people he named and the guilty ones he did not name. In any case, juror no. 12 was entitled to make a finding on D.B.'s credibility that was opposed to the findings of the other 11 jurors; and it is not clear that the other 11 did a much better job of articulating why they believed D.B. than juror no. 12 did of articulating why he did not.
The question of a deal for D.B. appears to have been complex. The subject came up in a discussion on immunity outside the presence of the jury before D.B. testified. The prosecutor mentioned nine pending prosecutions against D.B. and five more pending police reports. The prosecutor and D.B.'s counsel agreed that in the pending cases, D.B. had exposure of about 32 years. The district attorney had extended an offer of six years, but then D.B.'s attorney had sought to get him into drug court. The district attorney declined to dismiss any counts if D.B. were going to drug court, and the court was unwilling to suspend so many. So the question was unresolved and D.B.'s cases were placed back on a pre-prelim calendar. And in any event, the six-year offer was unrelated to D.B.'s testimony. When testifying, D.B. was asked whether the district attorney had promised him anything other than immunity for his testimony, and he said no. After the presentation of evidence was completed, a stipulation was read to the jury, stating that the prosecution had not made an offer of settlement to D.B. in exchange for his testimony in this case, and all offers made to him were independent of his testimony in this case. But offers of leniency, and what he might do to get them, and what to do if he did not get one, were subjects he might well have had on his mind when making his statement to police and when testifying. --------
This case came down to a choice between believing or not believing D.B.'s statements to Deputy Hudec in the hospital two days after the attack. By the other jurors' own accounts, juror no. 12 made it clear he considered this issue to be determinative, stated his position on the issue, and proffered his reasons: D.B. did not seem honest and could be setting some of the defendants up. The fact juror no. 12 reasoned his way to this position early and was not persuaded to change it does not show he refused to deliberate. He did not accept the other jurors' contrary reasons, whatever these might have been, but the other jurors' remarks to the court did not support, in any consistent way, the claim he refused to listen to them. Our standards for deciding when a juror has refused to deliberate should not exclude the possibility that the majority may be failing to give due consideration to the opposition.
For these reasons, the record is not adequate to show, as a demonstrable reality, that juror no. 12 failed or refused to deliberate. The trial court abused its discretion in relieving juror no. 12 and substituting an alternate. "This error [was] prejudicial and requires reversal of the judgment." (People v. Cleveland (2001) 25 Cal.4th 466, 486.)
In light of our conclusion that the judgment must be reversed on this issue, Noriega's remaining claims regarding his sentencing are moot.
DISPOSITION
The judgment is reversed and the matter is remanded for a new trial.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.