People v. Cleveland

WERDEGAR, J.

I concur fully in the majority’s decision to affirm the judgment of the Court of Appeal. I write separately to clarify the applicable legal standard appellate courts must apply when reviewing a trial court’s decision to discharge, or not discharge, a sitting juror for failure or inability to deliberate. As the majority explains, Penal Code section 1089 authorizes a trial court to discharge a juror if, among other reasons, “good cause” is shown that the juror is “unable to perform his duty.” We have on several occasions explained that a trial court’s determination of good cause under section 1089 is subject to the deferential abuse-of-discretion standard, meaning that we will uphold the trial court’s decision to discharge, or not discharge, a juror if there is substantial evidence supporting it. (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 843 [ 55 Cal.Rptr.2d 347 , 919 P.2d 1280 ]; People v. Beeler (1995) 9 Cal.4th 953, 975 [ 39 Cal.Rptr.2d 607 , 891 P.2d 153 ]; People v. Johnson (1993) 6 Cal.4th 1, 21 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Price (1991) 1 Cal.4th 324, 400 [ 3 Cal.Rptr.2d 106 , 821 P.2d 610 ].) However, if that were the extent of the appropriate appellate inquiry, we should reverse the Court of Appeal here, for there was substantial evidence, in the form of the testimony of several jurors, that Juror No. 1 was not functionally deliberating. 1

Repetition of the “abuse of discretion” formula in this context is potentially misleading, for the substitution of a juror after the jury has retired to deliberate “may trench upon a defendant’s right to trial by jury. (U.S. Const., Amend. VI; Cal. Const., art. I, § 16[.])” (People v. Collins (1976) 17 Cal.3d 687, 692 [ 131 Cal.Rptr. 782 , 552 P.2d 742 ], fn. omitted.) Thus, discharge of a juror who may be holding out in a defendant’s favor raises the specter of the government coercing a guilty verdict by infringing on an accused’s constitutional right to a unanimous jury decision. In light of this constitutional dimension to the problem, it is inappropriate to commit to the trial court—subject only to the deferential abuse-of-discretion standard of review on appeal—the important question of the substitution of jurors after deliberations have begun.

*488 Recognizing the need for additional protection of an accused’s constitutional rights, we more accurately have explained that, to affirm a trial court’s decision to discharge a sitting juror, “[the] juror’s inability to perform as a juror must ‘appear in the record as a demonstrable reality.’ ” (People v. Johnson, supra, 6 Cal.4th at p. 21 , italics added, quoting People v. Compton (1971) 6 Cal.3d 55, 60 [ 98 Cal.Rptr. 217 , 490 P.2d 537 ]; People v. Marshall, supra, 13 Cal.4th at p. 843 .) Such language indicates that a stronger evidentiary showing than mere substantial evidence is required to support a trial court’s decision to discharge a sitting juror. In this context, then, a trial court would abuse its discretion if it discharged a sitting juror in the absence of evidence showing to a demonstrable reality that the juror failed or was unable to deliberate.

Because I read the majority opinion to be consistent with my understanding of the applicable standard of review, and because I agree the record does not show to a demonstrable reality that Juror No. 1 was refusing to deliberate with the other jurors, I concur.

As the majority explains, both Juror No. 7 and Juror No. 9 stated that Juror No. 1 would not answer any questions. (Maj. opn., ante, at p. 472.) Juror No. 10 reported that Juror No. 1 did not participate when the other jurors discussed the elements of the offense. (Ibid.) Juror No. 11 testified Juror No. 1 refused to answer questions about his views whether the elements of the offense were shown by the evidence. (Ibid.) Juror No. 12 supported this latter observation. (Id. at p. 473.)