P. v. Davis

Filed 2/23/07 P. v. Davis CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Ulysses Davis, Jr., (Davis) appeals the judgment imposed following his jury-trial convictions for attempted murder and other offenses. Davis contends, inter alia, the trial court erred by dismissing Juror Number 12 (Juror 12) for failing to deliberate. We agree. Accordingly, we shall reverse the judgment and remand for further proceedings. We address Davis other contentions where necessary for purposes of retrial.

BACKGROUND

A. Factual Background

In 1998, Davis began an intimate relationship with the victim in this case, Janet Barr. The relationship was up and down, but deteriorated when Davis became abusive and threatening. On one occasion when Barr tried to end the relationship, Davis threatened to kill her. Davis was returned to jail on different occasions due to his abuse of Barr. On the last occasion, Davis confronted Barr on August 1, 2002, as she left an Alcoholics Anonymous (AA) meeting in the local church. Davis asked Barr to get in his car so they could talk, but then proceeded to drive around and would not let Barr get out of the car. Bar jumped out of Davis car at a stoplight, ran back to her own car, got in and locked the doors. Davis became enraged and broke Barrs passenger side window, causing her to sustain multiple minor lacerations. Davis then rammed his car into the passenger side of Barrs car before fleeing the scene. Barr subsequently changed her phone number and obtained a restraining order to keep Davis away from her.

Nonetheless, Barr visited Davis while he was in jail as part of her Alcoholics Anonymous (AA) program, and she continued to receive letters from him. As Davis February 23, 2003, release date approached, Barr told Davis parole officer and drug counselor she was afraid he would kill her. However, when Davis called Barr upon his release from jail, she agreed he could come over to her place. They spent the nights of February 23 and 24 together. Davis crawled through a window on both nights, because Barr did not want her children to know he was there. After talking the matter over with a close friend, Barr decided she needed to break completely with Davis. When Davis called on the evening of February 25, Barr told him she didnt want him to come over.

On the morning of February 26, 2003, Davis called Barr repeatedly on her cell phone and house phone, but Barr did not want to talk to him so she turned off the phones. In the evening, Barr arranged to go out to dinner with a friend who lived just down the street. Barr drove to her friends house, parked in the driveway, and waited in the car for her friend to come out. Someone knocked on the window of the car, and Barr saw it was Davis. Davis asked her to roll the window down. Barr spoke with Davis but became frightened as Davis grew agitated, so she stepped on the gas and sped to the nearest police station. Davis pursued her in his car, and yelled at her as she ran into the police station. Barr filed a police report on the incident, then she and her friend had dinner in a restaurant next to the police station. Barr went home about 9 p.m. and got ready for bed. Davis called Barr before she was asleep. He was angry and yelled at Barr about running from him and going to the police station. Barr told him not to call any more and hung up the phone.

At approximately 11.30 p.m. that evening, Davis crashed his car through the exterior wall of Barrs home and part way into her bedroom. Barr was in bed and her daughter was just outside Barrs bedroom at the moment of impact. A neighbor ran to the scene and extinguished a fire inside Davis vehicle. A gas can was found in the passenger area of Davis car, and it was later determined the fire in the car was intentionally set using matches and gasoline. Subsequently, police found Davis near the scene smelling strongly of gasoline and with severe burns to his hands and body.

B. Procedural History

The information filed on December 10, 2003, charged Davis with the following offenses: Count oneattempted murder of Janet Barr, in violation of Penal Code sections 187, subdivision (a) and 664[1]; count tworesidential burglary for entering an inhabited dwelling with the intent to commit attempted murder, in violation of section 459; count threeassault with a deadly instrument (vehicle) upon Janet Barr, in violation of section 245, subdivision (a)(1); count fourresidential burglary for entering an inhabited dwelling with intent to commit an assault with a deadly instrument, in violation of section 459; count fiveassault by means likely to cause great bodily injury against Janet Barr, in violation of section 245, subdivision (a)(1); count sixresidential burglary for entering an inhabited dwelling with intent to commit an assault by means likely to cause great bodily injury, in violation of section 459; count sevenattempt to burn a structure or property, in violation of section 455; count eightresidential burglary for entering an inhabited dwelling with intent to burn a structure or property, in violation of section 459; count ninestalking another person, Janet Barr, in violation of section 646.9, subdivision (a); count tenviolation of protective order, in violation of section 273.6, subdivision (a).

Count one also alleged Davis committed attempted murder willfully, deliberately, and with premeditation, within the meaning of section 664, subdivision (a). The information also alleged counts one through eight were serious and/or violent felonies, and that in the commission of counts one and seven Davis personally used a deadly and dangerous instrument, viz., a vehicle. Further, the information alleged as to all counts Davis had suffered several prior convictions for purposes of probation limitation and sentence enhancement.

Jury selection began on June 25, 2004. The jury heard opening statements on June 29, 2004. On July 13, 2004, at close of the prosecution case, Davis moved to dismiss all specific intent counts on the basis specific intent had not been proved. The trial court denied the motion. The jury retired for deliberations on July 20, 2004. On July 23, 2004, in response to a note from the jury foreman during deliberations, the trial court conducted further voir dire both of the jury as a whole and each juror individually. The trial court then found cause to excuse juror number 12 for refusing to deliberate, pursuant to section 1089. After an alternate juror was sworn and seated, the jury was instructed to begin deliberations anew. The trial court denied a defense motion for mistrial based on improper discharge of juror 12.

On July 26, 2004, the jury returned with its verdict finding Davis guilty as charged on all counts. However, the jury found not to be true the allegation Davis committed attempted murder willfully, deliberately, and with premeditation. After Davis waived his right to a jury trial on the allegations of priors, the trial court found Davis suffered three prior convictions and failed to remain free of custody during the five years subsequent to the conclusion of each term, within the meaning of section 667.5, subdivision (b). The trial court also found Davis suffered five prior convictions, making him presumptively ineligible for probation, pursuant to section 1203, subdivision (e)(4). At sentencing on December 15, 2004, the trial court imposed a total aggregate sentence of 13 years and 8 months. As to count one, attempted murder, the trial court imposed the aggravated term of nine years, enhanced by a consecutive one-year term for personally using a deadly or dangerous weapon in the commission of the offense. The trial court noted the aggravated term was warranted by the fact when Davis drove his car into the wall of Barrs bedroom, Barr was asleep in bed and particularly vulnerable, and by his numerous prior felonies. As to count nine, stalking, the trial court imposed the aggravated term of three years, but stayed 28 months pursuant to section 1170.1 and imposed a consecutive term of eight months. In addition, the trial court imposed three consecutive one-year enhancements for prior prison terms served, pursuant to section 667.5, subdivision (b). The trial court also imposed aggravated terms on counts 2-8 and 10, but stayed punishment pursuant to section 654. The abstract of judgment was filed on December 20, 2004. Notice of appeal was timely filed on January 25, 2005.

DISCUSSION

I Dismissal of Juror 12

A. Background

Jury deliberations began on Thursday, July 22, 2004, and the jury deliberated that day from 10:00 a.m. to 4:30 p.m. At 9:30 a.m. on Friday morning, the trial court indicated it had received a note from the jury stating: We need some guidance. Were at a difficult point in our deliberations and cant seem to move forward. Can you advise us? Thereafter the note recited four bullet points: (1) there is concern about whether the jury instructions are being followed; (2) one juror wants the jurors duties more clearly and succinctly defined and wants to know if its necessary to explain her vote to the other jurors; (3) we feel as if were dangerously close to being unable to agree on a verdict and want to know if theres something else we can do or are overlooking; (4) having trouble focusing on one point at a time as an entire group. After discussing the matter with counsel, the trial court concluded there was no specific allegation of juror misconduct at this point. With agreement of counsel, the trial court called the jury back into the courtroom, acknowledged receipt of the jury note, and re-read the jury instructions pertinent to juror duties, viz., CALJIC Nos. 17.31, 17.40, 17.41, and 17.43. The trial court also reminded the jury each juror has a duty to deliberate and took an oath to do so, but stated, None of you has an obligation to explain to the others your reasoning, its a nice thing to do, but you dont have to explain your reasoning for why youre voting in a particular way. Further, the court told the jury, [E]ach one of you has an obligation to report to me, not just your foreperson, but any of you have the obligation to report to me if you, in good faith, believe that any of your fellow jurors are not following these instructions, and if that is the case, there are certain procedures that I can follow. That hasnt happened yet, but if it does, thats what well deal with. With that guidance, the trial court sent the jury back to deliberate.

At about 2:30 p.m. on Friday afternoon, the trial court stated it had just received two more notes from the jury foreperson. On note stated: We face a very difficult issue that the jurors have asked me to communicate to you. We feel a juror is lacking the ability to be rational and to objectively analyze evidence and testimony. The other stated: Juror No. 12 would like to speak with you. She feels she is being pressured and threatened because of her decision.

At this point, the trial court concluded there was an allegation of juror misconduct for failure to deliberate and Im under an obligation to make some inquiry about that. Over the objection of defense counsel, the trial court called the jury back into the courtroom and acknowledged receipt of the two notes. The court then read, for the third time, CALJIC No. 17.40 on the duty to deliberate. Next, the court admonished the jury that under Penal Code section 1089, it had the responsibility to excuse any juror for good cause, including refusal to deliberate, expression of an intention to disregard the law, an expression of an intention to decide the case based on penalty or punishment or any other improper basis. On the other hand, the court advised, it would be entirely improper for the Court to remove a juror on the basis simply of that jurors view of the sufficiency of the Peoples evidence. The trial court then asked the jury a question, requested the jurors think about it a minute, then raise your hand if your answer to the question is yes. The question was: Do any of you feel that any other juror or jurors are not following the instructions Ive just given you, that they arent deliberating, that they arent considering other peoples opinions and that they have foreclosed discussion? After all twelve jurors raised their hands in response, the trial court talked to each juror individually, starting in reverse order with Juror No. 12 and working back to juror No. 1.

The trial court spoke first with Juror No. 12 about the note saying she was feeling pressured and threatened by the other jurors. The following exchange took place:

Court: Do you want to tell me a little more about how you feel?

No. 12: Well, everybodys --- seems to be angry with me, and --- theyre all pressuring me to ----

Court: Well, dont say what, but theyre pressuring you to do something you dont want to do?

No. 12: Exactly.

Court: I see.

No. 12: Its as though they dont accept my opinion. I have looked at the --- the laws and instructions, and Ive seen the same evidence as everybody else, and Ive formed my own decision, using my mind and my eyes and whats available to me, you know, and --- and I dont seem to be respected through that.

Court: Well, Im sorry you feel that way, and Im sure that that makes you feel pretty uncomfortable, doesnt it?

No. 12: Well, I mean, I dont like it, I mean, but its --- its not --- Im not frightened or anything like that.

Court: Oh, sure.

No. 12: Im not gonna be --- run away from my duty

Court: Right.

No. 12: --- because of it. I just . . . dont think its a proper way to behave. I think when a person has given his decision after hes deliberated to the best of his ability, thats it. It should be accepted. I didnt I didnt ask anyone else to change their decision.

Court: Juror No. 12, are you participating in the deliberations?

No. 12: Yes, your Honor. We have deliberated until Im almost blue in the face and gone over the stuff over and over. Yesterday I had a headache when I left. Weve gone over and over and over. Yes, Im participating to the best of my ability.

Court: Do you accept the Courts instructions about the elements of the crime?

No. 12: Yes, I do.

Court: ---- of each crime?

No. 12: Yes, I do. And Ive read --- read it very thoroughly.

Court: M-hm.

No. 12: And as I understand it, that how I felt --- based my decisions.

Court: [D]o you feel like if you had any further information or further instructions, it would be helpful to you, or do you feel like you know everything you need to know?

[] No. 12: Well there are questions in my mind, but I think with the information I have, Ive made the best decision I can.

Court: Okay. And so at this point, you feel like youve made up your mind, and theres really nothing anyone else could do or say that would change your thinking about this case; is that right?

No. 12: I think weve gone over it pretty much.

The trial court then asked Juror No. 12 to return to the jury room and ask No. 11 (the jury foreperson) to come into the courtroom. Thereafter, the trial court questioned each remaining juror individually and each juror expressed concerns about Juror No. 12.

Juror No. 11 thought No. 12 was considering penalty because in talking about counts that had a lesser charge she would agree to vote for a conviction if it was a misdemeanor. Juror 11 cited one instance where the jury went through evidence step-by-step and he thought everyone reached agreement on a verdict on one charge, but when the jury went on to the next phase, she [Juror 12] disagreed, so we said, well, but we just talked about this and came back, and she said, Oh, well, no, no, I didnt mean that. This suggested to Juror 11 that Juror No. 12 had trouble staying on track, and Juror 11 opined No. 12 would go off on other tangents when the rest of the jury wanted to focus on a question. In response to the courts enquiry if Juror 12 was participating in deliberation, Juror 11 stated, No, not very much. I mean, she is talking, but its mostly that she thinks were persecuting her, that if we dont agree, then were not . . . we tried to get her to say, What --- what arent we seeing?

Juror No. 10 explained with respect to No. 12, Weve had extreme difficulty. We have been in a situation where when we have tried to deliberate and focus on a point, focus was not maintained, the questions were delivered --- delivered --- directed towards No. 12, the response would not be a direct response but would be diversionary and often confrontative [sic], and it felt as if we could not make forward progress in any rational way. Weve wondered whether or not she was really competent to understand the process and what was expected of her. . . . And its been just extraordinarily difficult to have a rational, well thought out deliberative exchange. As to whether No. 12 was deliberating, Juror No. 10 opined, Almost --- no. Its as if she chose to say no to a question without any depth of thought process. As to whether Juror No. 12 understood the instructions about the charges and elements of the crimes, Juror No. 10 stated, Ive tried my best to help her understand, I just dont know that she really can apply it directly. A case in point would be, upon hearing the read definition of a term, she would try to redefine it in her own interpretation.

Juror No. 9 said the jury would go through the deliberative process, trying to be very precise in looking through the evidence and the charges, and well come to a sort of agreement that certain evidence proves certain things. . . . And Juror No. 12 will agree to some things, but then when it comes to the actual count, changed her mind. This happened more than once, according to Juror No. 9. Juror 9 opined that as the process continued it became more evident that it was across the board opinion of hers that a certain decision she had come to before we even started deliberating. Juror 9 opined No. 12 did not understand the process the jury was going through or the jury instructions. As to whether Juror No. 12 was deliberating, Juror 9 stated, In the beginning more so than as we progressed.

Juror No. 8 opined No. 12 did not comprehend the process or follow the law when we are presenting evidence. She --- well, shes not paying attention at all, and when we ask her to describe her opinion of something, she obviously is not agreeing with anything that were trying to decide upon, and shes just not listening to the evidence at all. . . . [W]ere going around and around in circles because of --- of that to a great extent, but I dont think shes comprehending the process. As to whether Juror 12 was deliberating, Juror 8 stated, When she picks her head up sometimes she does. Shes like down doing this a lot (indicating), and then all of a sudden shell nod her head like shes following, but when things are being read, its just --- Juror 8 thought Juror 12 was not following instructions because she is not looking at the evidence and was making up her own interpretation of a term, especially on one particular one.

Juror 7 stated, We have problems with Juror No. 12. Juror 7 explained that initially everyone was working hard and just focusing on the evidence and the testimony from the witnesses, and --- but she did not want to listen, she already seemed like already has made up her mind. And we tried to show her the evidence, we werent trying to force her to change --- to think any --- we just wanted to show her the evidence, but she wasnt willing to even consider it. The court asked whether Juror 12 had declared she would not consider the evidence or indicated this by body language, such as by do[ing] something, or look[ing] away or ---. Juror 7 replied, No, shell just suddenly bring up another subject, rather than focusing on what were talking about, shell bring up another subject. As to whether No. 12 was participating in deliberations, Juror 12 stated, She is, but shes not willing to listen, shes already made up her mind, and even when we present the evidence there, shes already predetermined what shes going to decide already. As to whether No. 12 understood the instructions, Juror 7 opined shes not looking at the evidence. I think her decisions are more emotional as opposed to looking at what was presented by the witnesses and . . . the evidence that was presented.

Juror No. 6 stated that on a couple of instances he asked Juror 12 for clarification on the statement or for clarification of an opinion, but Juror 12 was aggravated by the request and refused to respond. Because Juror 6 was aware of some animosity and some conflict between certain people on the jury, s/he later apologized to Juror 12 and tried to explain s/he was not attacking Juror 12, but was merely attempting to include her in the process. Juror 6 said the attempted apology met with a rebuff from Juror 12, because she feels . . . everyone is trying to attack her. Juror 6 also stated Juror 12 made statements which have led me to believe that her mind was made up at the beginning of deliberations before any deliberation was made, and opined Juror 12 understood the courts instructions very selectively.

Juror 5 said No. 12 refused to listen to logic based upon the evidence that was there, had a preconceived notion of what she wanted to have happen. As to whether Juror 12 was deliberating, Juror 5 replied, In --- to the degree that shes belligerent about the fact that we keep presenting evidence as evidence and she does not see it as evidence, as the rest --- the other 11 has, yes. As to whether Juror 12 accepted and understood the courts instructions, Juror 5 said, I think she does to her --- the best of her ability. Asked if theres some problem with her ability to understand [the instructions], Juror 5 stated, I --- I find her sense of logic totally --- the strangest Ive ever come across.

Juror No. 4 stated with regard to No. 12, I dont think she comprehends very well. I mean, I dont think she understands the law, and shes not willing to deliberate with us. This was the case from the very beginning, according to Juror 4. In Juror 4s opinion, Juror 12 was having a very hard time understanding the courts instructions and was simply not comprehending it.

Juror No. 3 stated with respect to No. 12, Basically, there is a real serious issue of . . . competency, of being able to understand the charges, and to take the charges and the law and be able to come --- come to a --- a verdict. Not necessarily a verdict that is --- whatever, guilt or innocence, its not an issue of not agreeing, its an issue of a person not understanding. . . . And we go through the process, and the outcome does not reflect that the juror is taking the evidence and applying it to the law because --- I believe its ---its a competency issue. As to deliberating, Juror 3 stated, [Juror 12]s actually been a detriment. Shes refused to participate in a way that, you know, we believe --- even to talk about --- Im trying to be very careful here. As to whether Juror 12 understood the courts instructions, Juror 3 replied, I believe that, yes --- yes, in answer to that question, yes, I think its been difficult for her --- I mean, weve even taken it down to . . . one bit of information at a time, and trying to explain it, and what Ive noticed is she goes somewhere else with it and talks about issues that dont even have anything to do with what were discussing and trying to stay on track.

Juror No. 2 stated the problem with Juror 12 was the failure to --- to participate or deliberate. Asked whether that was the problem from the start, Juror 2 stated, I think it was clear within an hour of the first day that this was the situation that we were dealing with. We struggled with it. Weve tried many different approaches, tried to be as logical as possible, to use the evidence as much as possible. Juror 2 explained the rest of the jury would get a statement of agreement or disagreement [from No. 12], whatever, to each point, and yet at the conclusion, the conclusion did not match the step-by-step process, it --- we could not get a coherent, rational set of --- conclusion from the process that we went through. Asked whether Juror 12 understood the courts instructions, Juror 2 replied, I dont think theres a comprehension, no, of what each of those crimes means.

Juror No. 1 opined Juror 12 was not performing her duty as a juror because, [W]hen we were going over instructions that were given, and we came to --- how can I put it --- it seems like Juror No. 12 had her own path and we were following one, she was following another As to whether Juror 12 understood the instructions, Juror No. 1 opined, Not completely. Cause I felt like they were read over and over and over again, and she would still stick with her own, so I dont think she . . . I felt that either she didnt want to follow the instructions, . . . it seemed like something wasnt clicking, wasnt sticking with her. Juror 1 felt No. 12 did not understand the instructions because we went over the rules with her that --- that were given us, and she would still go the other way. Juror No. 1 opined No. 12 had her mind made up from the beginning.

Having completed its inquiry of the jury members, the trial court heard argument by counsel before delivering its ruling. The trial court stated: Its very clear under the law that a juror who is eccentric, illogical, sleepy, belligerentnone of those things is reason to excuse a juror, and excusing a juror after two days of deliberations is a heavy responsibility. Under Caljic 1.00, the two basic duties . . . jurors have to perform are, first, to determine what facts have been proved from the evidence received in the trial; and second, to apply the law that I state to them to the facts as they determine them, and in this way arrive at their verdict and any finding theyre instructed to include. The --- I noted when I asked the jurors if any of them felt that anybody on the jury was not performing his or her duty as a juror, and defined that term, not 11, but 12 hands went up. That caused me a little bit of concern. When I heard from the 11 jurors, they were overwhelming in their statement that Juror No. 12 has refused to deliberate. She hasnt refused to talk, but shes refused to deliberate, shes refused to consider the evidence, she has not been willing to consider alternate points of view. And I believe every one of them was very clear and very careful to say disagreement doesnt mean refusal to deliberate, they get that. It is my ruling and my finding, based on the tes --- or the evidence Ive taken this afternoon in this inquiry, that Juror No. 12 has refused to deliberate, has manifested an inability to apply the law to the facts in this case, has manifested a lack of understanding of the jury instructions, and generally, whether its mental confusion or what, is not able to perform her duty as a juror, and I am finding cause, under Penal Code section 1089, to excuse her from further service on the jury.

The trial court then excused for cause Juror No. 12, and at around 4:00 p.m. on Friday afternoon, instructed the jury they would begin deliberations anew with an alternate juror on Monday, July 26, 2004. At 9:30 a.m. on Monday, the alternate juror was sworn and seated as Juror 12, and the trial court again instructed the jury to disregard all earlier deliberations and begin deliberations anew. At 3:10 p.m. on Monday afternoon, the trial court received notification from the jury it had reached a verdict.

B. Discussion

Penal code section 1089 provides a trial court may discharge a juror during deliberations and draw an alternate if a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty. . . . ( 1089.) Section 1089 has been applied to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty within the meaning of Penal Code section 1089. (People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).) Although caution must be exercised in determining whether a juror has refused to deliberate in order to protect the sanctity of jury deliberations, a court is permitted to make reasonable inquiry . . . into allegations of misconduct during deliberations. (Id. at pp. 475-476.) Accordingly, when the court is on notice that there may be grounds to discharge a juror during deliberations, it must conduct whatever inquiry is reasonably necessary to determine whether such grounds exist. [citation] (Id. at p. 480.)

As to what would constitute sufficient grounds to discharge a juror, the Supreme Court agreed with the holdings of several federal appellate courts that a court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecutions evidence. (Cleveland, supra, 25 Cal.4th at p. 483.) Nonetheless, the Supreme Court declined to adopt a standard based on that principle, preferring instead to adhere to established California law authorizing a trial court . . . to discharge [a] juror [after reasonable inquiry] if it appears as a demonstrable reality that the juror is unable or unwilling to deliberate. [citations] (Id. at p. 484.)

After noting proper grounds for removing a deliberating juror include refusal to deliberate[,] the Supreme Court described such refusal as follows: A refusal to deliberate consists of a jurors 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. [Citation.] (Cleveland, supra, 25 Cal.4th at p. 485.)

Applying these principals to the circumstances present here, we conclude the trial court abused its discretion in excusing Juror No. 12 because the record before us does not establish as a demonstrable reality that Juror No. 12 refused to deliberate.[2] (Cleveland, supra, 25 Cal.4th at p. 484.) In the first place, the record does not support the trial courts assertion every one of the jurors was very clear on the distinction between honest disagreement and a refusal to deliberate. The only juror to specifically articulate that distinction was Juror No. 3, who opined regarding Juror 12; its a competency issue because its not an issue of not agreeing, its an issue of a person not understanding. For most of the other jurors, Juror 12s refusal to deliberate seems to equate more with her perceived inability or unwillingness to comply with a very logical, structured, step-by-step approach to deliberations favored by the other eleven. Juror after juror expressed a frustration that Juror 12 would follow the sequential process only so far, but would refuse to take the last step (presumably to a verdict of guilty). For example, Juror 9 said well come to a sort of agreement that certain evidence proves certain things . . . [a]nd Juror 12 will agree to some things, but then when it comes to the actual count, change[] her mind. This characteristic of Juror 12 was variously described by the other jurors as trouble staying on track (Juror 11); an inability to have a rational, well thought out deliberative exchange (Juror 10); a refus[al] to listen to logic based upon the evidence that was there (Juror 5); we could not get a coherent, rational set of --- conclusion form the process that we went through (Juror 2); something wasnt clicking, wasnt sticking with her (Juror 1).

However, a disagreement over the manner in which deliberations should be conducted or the fact a juror does not deliberate well or relies upon faulty logic does not constitute a refusal to deliberate and is not a ground for discharge. (Cleveland, supra, 25 Cal.4th at p. 485.) Indeed, the circumstances in Clevelandare analogous to those here. In Cleveland, the jurys note to the court asserted Juror No. 1 does not show a willingness to apply the law. The foreperson stated Juror No. 1 listened to other jurors only halfheartedly and refused to discuss the elements of [the crime] individually, preferring to look at the grand picture. . . . (Id. at p. 486.) Other jurors complained Juror 1 discussed matters that they considered irrelevant and adopted an unreasonable interpretation based upon his own personal opinion while the rest of us have a different interpretation. (Ibid.) The Court noted Juror 1s approach to deliberations apparently frustrated his colleagues. (Ibid.) The Court concluded although Juror 1 may have employed faulty logic and reached an incorrect result, [] it cannot be said that he refused to deliberate. (Ibid.)

Moreover, Juror 12s note to the court and her subsequent exchange with the trial judge suggests she may have been a lone holdout juror who steadfastly held to [her] belief defendant was not guilty. (People v. Bowers (2001) 87 Cal.App.4th 722, 735-736.) In her note to the Court, delivered after more than a day-and-a-half of deliberations, Juror 12 stated she felt pressured and threatened because of her decision. Clearly, Juror 12 had reached a decision at that point. Juror 12 explained the other jurors were angry with her, and pressuring her to do something she did not want to do (obviously, to change her opinion.) She argued that when a person has given his decision after hes deliberated to the best of his ability, thats it. It should be accepted. She lamented that her opinion was not being accepted, averring that she had looked at the laws and instructions, . . . seen the same evidence as everybody else, and Ive formed my own decision, . . . and I dont seem to be respected through that.

Also, the circumstances here do not present as egregious as those in the cases where a trial courts decision to dismiss a juror has been affirmed. For example, in Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, the appellate court concluded the record supported a finding of a demonstrable reality a juror failed to deliberate where the juror separated herself physically from the other jurors, did not pay attention to their deliberations and, instead, slept or read a novel, the Bible, or both, throughout the two days during which she was a member of the deliberating jury. (Id. at p. 1688.) And in People v. Thomas (1994) 26 Cal.App.4th 1328 (Thomas), cited here by Respondent, the trial courts decision to discharge a juror was affirmed where the juror did not answer the questions posed to him by other jurors, did not sit at the table with the other jurors during deliberations, acted as if he had already made up his mind before hearing the whole case, and did not look at the two victims in the courtroom. (Id. at p. 1333.) The dismissed juror in Thomas also took the notes he had made during the trial home with him in his socks despite the trial courts warning not to do so. (Ibid.) Here, by contrast, the record does not support a finding Juror 12 separated herself physically from the other members of the jury, entertained herself with other pursuits or consistently refused to pay attention during deliberations, or refused to engage with her fellow jurors.[3]

Of the examples of refusing to deliberate given in Cleveland, supra, this record is closest on the question of whether Juror 12 express[ed] a fixed conclusion at the beginning of deliberations and refus[ed] to consider other points of view. (Cleveland, supra, 25 Cal.4th at p. 485.) But even on that question, the record does not support a finding of a demonstrable reality Juror 12 was unable or unwilling to deliberate because the evidence is somewhat mixed on the issue. (Id. at 484.) It is clear from the trial courts questioning of the jurors that some of them had the definite impression Juror 12 had reached a decision before deliberations began. But none actually said she had stated a fixed conclusion at the outset and thereafter refused to listen to other jury members. For example, Juror 9 was one such juror who expressed an opinion No. 12 had come to a decision before deliberations began. Yet Juror 9 also remarked Juror 12 deliberated in the beginning more so than as we progressed, and described a process of engagement whereby Juror 12 will agree to some things, but then when it comes to the actual count, change her mind. So too, Juror 7 thought Juror 12 already made up her mind. Nevertheless, he denied Juror 12 had declared she would not consider the evidence. Rather, he described a process of engagement in which Juror 12 would bring up another subject, rather than focusing on what were talking about. It may be Juror 12 made up her mind very early on in deliberations. However, that is not a cause for discharge. (See People v. Bowers (2001) 87 Cal.App.4th 722, 734 [It is not uncommon for a juror . . . to come to a conclusion about the strength of a prosecutions case early in the deliberative process and then refuse to change his or her mind despite the persuasive powers of the remaining jurors].)

Determining whether to discharge a juror because of the jurors conduct during deliberations is a delicate matter. (Cleveland, supra, 25 Cal.4th at p. 484.) We certainly cannot fault the trial courts handling of the matter, because the trial court followed the procedures approved in Cleveland. However, in the end we conclude the trial court abused its discretion by concluding the record showed a demonstrable reality that Juror 12 was unable or unwilling to deliberate. (Ibid.) This error is prejudicial and requires reversal of the judgment. (Id. at p. 486.)

A general reversal of a judgment of conviction sends the case back for a new trial. (See P.C. 1260, 1261, 1262.)[4] And the effect of a general reversal of any judgment or order is to restore the parties to the position they were in before the first trial or hearing, except that they are bound to follow the law declared in the appellate opinion. [Citations] 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, 166, pp. 412-413.) Accordingly, for purposes of retrial, we discuss below those other issues not rendered moot by reversal of the judgment.

II Other Issues

A. Attempted Murder Instruction

Davis contends the trial court erred by instructing the jury on the offense of attempted murder. Specifically, he contends the trial court erred by instructing that malice may be implied from an act showing a conscious disregard for human life because that dilute[s] the specific intent to kill requirement spelled out in the courts attempted murder instruction. The Attorney General concedes error on this point. We agree this was error because a specific intent to kill is a requisite element of attempted murder, and that mere implied malice is an insufficient basis on which to sustain such a charge. (People v. Lee (1987) 43 Cal.3d 666, 670.) Accordingly, implied malice instructions should never be given in relation to an attempted murder charge. (Ibid.)[5]

B. Burglary Convictions

Davis contends the conviction for burglary under count two cannot stand because it is based on an invalid conviction for attempted murder. Because the judgment is vacated on all counts, this contention is now moot. Davis also contends all but one of the convictions for residential burglary (counts two, four, six and eight) must be set aside because they are duplicative counts based on the same single entry with intent to commit four different felonies, namely; (1) attempted murder; (2) assault with a deadly weapon; (3) assault by means likely to cause great bodily injury; (4) burning a structure. We agree, and therefore discuss the issue below as it is relevant to a retrial.

The burglary statute states in pertinent part: Every person who enters any house, room, apartment, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. ( 459.) This statute sets forth only one act which constitutes the offense, but that act may be presented to the jury on several different theories.  (People v. Failla (1966) 64 Cal.2d 560, 568 (Failla); see also People v. Washington (1996) 50 Cal.App.4th 568, 577 (Washington) [the conduct described and proscribed by section 459 is a single act: entry) In other words, [t]he gravamen of a charge of burglary is the act of entry itself[.] (Ibid.; Washington, supra, 50 Cal.App.4th at p. 577 [the proscription against residential burglary is designed . . . to prevent risk of physical harm to others that arises upon the unauthorized entry itself) Accordingly, although  [a]n entry may be made with intent to commit two or more felonies, [] that would constitute only one burglary. (People v. Hall (1892) 94 Cal. 595, 597 [30 P. 7] overruled on other grounds by People v. Spriggs (1964) 60 Cal.2d 868, 875). Such is the case here. Davis made one entry into Barrs residence when he crashed the car into the exterior wall of her house. There was no evidence of any other entry. In essence, the four separate counts for burglary were but different theories of the same crime. (Failla, supra, 64 Cal.2d at p. 568.) Thus, defendant can be convicted of but one count of burglary, though entry with intent to commit any of the charged felonies could support it.

C. Lesser Included Offenses

Davis contends the conviction under count three must be set aside because it is either duplicative of, or a lesser included offense to, count five. Count three of the information charged Davis with assault with a deadly weapon and instrument upon Janet Barr on February 26, 2003, in violation of section 245, subdivision (a)(1).[6] Count five charges Davis with for assault by means likely to cause great bodily injury to Janet Barr on February 26, 2003, also in violation of section 245, subdivision(a)(1). In short, Davis was charged and convicted for two violations of the section 245, subdivision (a)(1), based on the same act using the same means against the same victim. Like his duplicative burglary convictions, this was error.

Section 245, subdivision (a)(1) provides: Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. The Supreme Court made the following observation with respect to section 245: [T]he information charged petitioner with assault with a deadly weapon in violation of section 245 of the Penal Code. The court found him guilty of assault by means of force likely to produce great bodily injury in violation of the same section. The judgment, after setting forth this finding, states that the offense of which petitioner was found guilty is a lesser offense than that charged in the information but necessarily included therein. This is not so. Section 245 . . . defines only one offense, to wit, assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury The offense of assault by means of force likely to produce great bodily injury is not an offense separate fromand certainly not an offense lesser than and included withinthe offense of assault with a deadly weapon. This is not to say, of course, that a judgment may not properly specify which of the two categories of conduct prohibited by section 245 (i.e., assault (1) with a deadly weapon or instrument, or (2) by means of force likely to produce great bodily injury) was involved in the particular case. We believe that such a finding should be made for the benefit of probation and correction officials who may . . . attach significance thereto. (In re Mosley (1970) 1 Cal.3d 913, 919 fn. 5 (Mosley); see also People v. McGee (1993) 15 Cal.App.4th 107, 114 [section 245, subdivision (a)(1) defines one offenseassault upon the person of another with a deadly weapon or instrument [other than a firearm] or by any means of force likely to produce great bodily injury].) Based on the Supreme Courts observation on the nature of section 245 in Mosley, we conclude counts three and five described the same offense, and therefore one is duplicative of the other. Accordingly, Davis may only be convicted of one of these counts.

D. Spontaneous Declaration

Davis contends the trial court erred in admitting into evidence under Evidence Code section 1240 the spontaneous statement of Barrs daughter Christine. Christine testified at trial. However, Christines hearsay statement came into evidence during Barrs testimony. Barr stated she jumped out of bed after the crash and ran to find her daughter. Her daughter was calling 911. Barr then recognized the crashed car as belonging to Davis. When Barr told her daughter this, her daughter said, Mom, hes trying to kill you, he was trying to kill you, Mom. Defense counsel moved to strike this testimony as hearsay. The trial court denied the motion on the basis the statement was admissible under the excited utterance exception to the hearsay rule, but immediately instructed the jury as follows: However, ladies and gentlemen, you are to take that only as an excited outburst by an out of court witness, not for the truth of whatever was asserted by the witness at that time. Thus, while the trial court purported to receive the evidence as hearsay, it instructed the jury that the evidence could only be used for a non-hearsay purpose in the limiting instruction immediately given. The parties assume the evidence was received as hearsay, that is, for the truth of the matter asserted, and argue about whether the statement met the requirements for admissibility under section 1240 of the Evidence Code.[7] We decline to enter into that misunderstanding of what the court did. For benefit of retrial, we note that even if the statement was admissible under section 1240, whether it would survive an objection under section 352 is questionable. Whether the statement is admissible after such an objection, or for a non-hearsay purpose, is best left to further argument and ruling in the trial court.[8]

E. Caljic 2.28

Davis next contends the trial court prejudicially erred by instructing the jury with CALJIC 2.28 on the failure to timely produce evidence. Davis asserts giving this instruction unfairly blamed the defense for an alleged discovery violation. Because the judgment is vacated as to all counts, and all evidence will be reproduced if the case is retried, this issue is now moot.

DISPOSITION

The judgment is reversed and the case is remanded for further proceedings.

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Parrilli, J.

We concur:

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McGuiness, P. J.

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Pollak, J.

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[1] Further statutory references are to the Penal Code.

[2] Because we resolve this issue under the abuse of discretion standard articulated in Johnson, supra, 25 Cal.4th at p. 474 [ We review for abuse of discretion the trial courts determination to discharge a juror and order an alternate to serve ], we need not reach Davis contention that we must apply de novo review on account of the importance of the constitutional rights at stake. Also, because we resolve this issue under California law, we need not address Davis Sixth Amendment claims under the Federal Constitution.

[3] The only suggestion of misconduct by Juror 12 in deliberations was Juror 11s response under the trial courts questioning that Juror 12 may have been influenced by penalty. Juror 12 was not questioned about this, and no other juror when questioned by the trial court said Juror 12 was improperly considering penalty. Moreover, Juror 11 said Juror 12s remarks about penalty were made in the context of the jurys consideration of lesser-included charges, so Juror 12s remarks may have been appropriate in context. The trial court did not rely on Juror 12s alleged consideration of penalty in dismissing her from the jury, and we decline to affirm the trial courts ruling solely on Juror 11s unsubstantiated allegation of misconduct.

[4] Here, double jeopardy does not bar a retrial. (See People v. Hernandez (2003) 30 Cal.4th 1, 6 [double jeopardy does not preclude a retrial when a juror was improperly excused and replaced with an alternate].)

[5] Accordingly, we need not decide whether the error was structural, as Davis contends, or whether under Chapman v. California (1967) 386 U.S. 18 it was harmless error, as the Attorney General contends. Upon a retrial, however, the trial court should excise the concept of implied malice from the attempted murder instruction.

[6] Section 245, subdivision (a)(1) provides: Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

[7] Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception. (Evid. Code, 1240.)

[8] At trial, Davis also failed to object Christines hearsay statement should not have been admitted because it constitutes inadmissible lay opinion, although he now makes this claim on appeal. On the state of the record before us, we think it likely this objection too would have been sustained had it been offered. (People v. Miron (1989) 210 Cal.App.3d 580, 584 [the spontaneous statement exception to the hearsay rule cannot be used to bootstrap admissibility where statement is improper lay opinion under Evidence Code section 800].) Appellant claims his trial counsels failure to make these specific and timely objections at trial was ineffective assistance of counsel (IAC). At this juncture, appellants IAC claim is moot because counsel will have the opportunity to make such objections at retrial.