Filed 7/12/22 P. v. Castellanos CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Reversed.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

Over the course of two trials, juries convicted Ivan Castellanos of first degree murder, committed for a criminal street gang purpose; attempted murder with a gang enhancement; and assault with a deadly weapon with a gang enhancement. Castellanos presents several claims on appeal. Castellanos asserts the gang-related special circumstance and enhancements must be vacated and remanded under the amendments to Penal Code section 186.22.^[1] He argues the prosecutor improperly struck jurors based on race. He contends the trial court erred by admitting hearsay statements under the spontaneous statement exception. He asserts the court failed to give a limiting instruction concerning prior acts. Next, he argues the court improperly discharged a juror during deliberations. Finally, he asks the abstract of judgment be amended to correct clerical errors.

We agree with Castellanos the trial court improperly struck a juror during deliberations. Accordingly, we reverse the judgment of conviction and need not address Castellanos’s remaining claims.

FACTS

I. Procedural History

This case is comprised of crimes committed on two different days and involved two trials. An information charged Castellanos with aggravated assault of David Rodriguez with a deadly weapon (vehicle) on August 7, 2011. (§ 245, subd. (a)(1), count 3.) The information also charged Castellanos with the August 13, 2011, special circumstance gang murder of Tyler Sanchez (§§ 187, subd. (a), 190.2, subd. (a)(22); count 1) and attempted willful, deliberate and premeditated murder of Mauricio Marin (§§ 664, subd. (a), 187, subd. (a); count 2).^[2] The information alleged personal discharge of a firearm causing death and/or great bodily injury enhancements

(§ 12022.53, subd. (d)) as to counts 1 and 2, as well as a gang enhancement (§ 186.22, subd. (b)(1)) with respect to counts 2 and 3. It also alleged Castellano had a prior serious and violent felony conviction under sections 667, subdivisions (a), (d), and (e)(1), and 1170.12, subdivisions (b) and (c)(1).

At the first trial, a jury found Castellanos guilty on count 3 and returned true findings on the gang enhancement on that count. It was unable to reach a verdict on counts 1 and 2, and the court declared a mistrial as to those counts.

During the second trial, the prosecution retried Castellanos on counts 1 and 2. The second jury found Castellanos guilty of first degree murder as alleged in count 1, and returned true findings on the gang special circumstance and personal gun use allegations. It also found Castellanos guilty of willful, deliberate and premeditated attempted murder as alleged in count 2, and returned a true finding on the gun use and gang allegations.

II. Pertinent Proceedings During the Second Trial

The dispositive issue on appeal concerns the discharge of a juror during deliberations in the second trial. After the case went to the jury, the courtroom deputy informed the court that Juror No. 114 was concerned about Juror No. 152’s involvement in deliberations. The court described the conversation as an informal discussion with the bailiff and discussed the issue with counsel on the third full day of juror deliberations. The court reread instructions on jury conduct to the jury.

In pertinent part, the trial court instructed the jury as follows: “Do not discuss your deliberations with anyone. Do not communicate using Facebook or any other social media during your deliberations. It is very important that you not use the Internet, a dictionary, or electronic device or cell phone in any way in connection with this case during your deliberations.” Neither counsel wanted the court to inquire of the jury at this point. The court agreed with counsel the real problem would be if jurors were using their cell phones for research.

Later that day, the jury sent a note to the court: “HELP! We have one juror that [has] not been participating in the deliberations since the beginning. . . . This juror seems to be, at their own admission, basing their decision on their ‘gut.’ No matter how many times the instructions are read over [and] over. . . . What is the process or possibility for replacing this juror with an alternate? We have very strong reasons for even asking.” Based on the note, the court indicated it needed to start making inquiries into the phone issue.

Juror No. 140, the foreperson, informed the court and counsel that other jurors had brought to his attention Juror No. 152 was using her cell phone, was not participating, and was eager to leave. The foreperson advised the court he had not written the note, another juror had, but it was read to all the jurors. Juror No. 140 witnessed some of this behavior himself, but the complaints mostly came from other jurors. The other jurors said Juror No. 152’s phone was out the majority of the time, she was stand‑offish, and was not engaged in the deliberations. Based on what he saw, Juror No. 140 could not tell what Juror No. 152 was doing on her phone. On one occasion, Juror No. 140 noticed Juror No. 152 had gestured the others to keep going. He said the others felt there was a “disconnect.” When the note question was read to the jurors including Juror No. 152, she said, “‘Go ahead and ask it.’” Juror No. 140 had seen Juror No. 152 use her phone on occasion but did not become concerned until more recently. He identified Juror Nos. 111, 114, 150, and 181 as having expressed concern about Juror No. 152. Juror No. 114 admitted he was not able to see what Juror No. 152 was actually doing because he was on a different side of the room.

Based on Juror No. 140’s comments, the court believed the foreman was getting information from other people. The court said it intended to ask the foreman to advise the court which jurors were giving him information about phone usage. The court noted the foreman was “acting on hearsay,” and the court needed to find out specifics about what was going on.

The court asked the foreman to give it the numbers of the jurors who had a closer view. The court individually questioned Juror Nos. 111, 114, 150, and 181. Juror No. 114 said she could not say exactly when she first observed Juror No. 152 had not been deliberating, but said it was early in the deliberations. When asked what caused her to believe Juror No. 152 was not deliberating, she responded, “phone use.” Juror No. 114 was sitting two seats away from Juror No. 152. She described Juror No. 152 texting on and off throughout the course, texting “maybe every hour.” Asked by the court if Juror No. 152 would speak up during deliberations, she responded, “very little.” Juror No. 152 stood up to leave at 3:45 p.m. on the second full day of deliberations saying it was time to go. Juror No. 114 reported no one had spoken directly to Juror No. 152, but there had been comments, not directly to her, “she is using her phone.”

Juror No. 111 wrote the note that went to the court based on a consensus. Juror No. 111 stated Juror No. 152 was distracted on her cell phone and had not participated in the discussions. Juror No. 111 sat next to Juror No. 152 in the jury room and saw the phone in Juror No. 152’s lap. According to Juror No. 111, Juror No. 152’s texting was “constant.” Juror No. 152 spoke when she was specifically asked a question and would give her opinion. She texted while the others discussed the jury instructions. On further inquiry, Juror No. 111 explained that when Juror No. 152 was asked what she thought about something, she would preface her response with “‘my gut tells me.’” The juror did not necessarily see Juror No. 152 using her thumbs to text, but she did see her scrolling on her phone a lot, which was distracting.

Juror No. 181 said the others had active discussions and shared their thoughts, opinions, and understanding of the evidence. Juror No. 181 stated Juror No. 152 did not ask questions and when asked for her thoughts replied with short responses that did not address the evidence or law, saying it was her gut feeling. Juror No. 181 said, “everyone has been on that same page. So everyone – everyone – everyone is participating in the deliberations with the exception of this woman.” Juror No. 181 was unable to speak to Juror No. 152’s phone use because she could not see it from her seat. When asked about Juror No. 152’s participation, Juror No. 181 said “she hasn’t spoken. She hasn’t been engaged. She hasn’t asked questions. She hasn’t – she hasn’t – said anything at all.”

Juror No. 150 said Juror No. 152 participated “very, very little.” Juror No. 150 witnessed Juror No. 152 on the phone a couple of times, but she had little to say about her phone usage. Juror No. 150 stated Juror No. 152 said “the very minimum.” In response to the court’s questions regarding whether Juror No. 152 would explain what she was thinking, Juror No. 150 said he did not know how to respond without telling the court the content of the response.

The court questioned Juror No. 152. She denied texting except during breaks or lunch. She only looked at her phone to see the tennis results. Juror No. 152 explained the jury included 10 women who all talked at once, so she blocked it out. Juror No. 152 said she had been patiently waiting and already knew how she would decide. She also stated the other members of the jury were going over and over the same things so she did not get involved. In addition, there were many sick jurors and Juror No. 152 was afraid of catching something so she wanted to leave early. On further inquiry, Juror No. 152 said she was a germaphobe and was stressed she would get sick. She cared for her 87-year-old mother and had to be careful.

The court and prosecutor thought Juror No. 152 was not truthful. Castellanos’s trial counsel said it appeared Juror No. 152 had participated until the deliberations became repetitive. The court said there were two radically different stories about the juror’s use of the phone. Trial counsel said the jury’s note did not mention texting or cell phone use.

The next day, Juror No. 152 asked to speak with the court. She said she woke that morning with “female issues” and her elderly mother also was not well. Juror No. 152 suspected the issues arose with the other jurors because she was in the minority in the “voting sense.” Juror No. 152 said she was not going to change her mind and could not do another month of jury duty. She did not ask to be excused and stated she felt capable of deliberating and fulfilling her duties as a juror that day, but not the next week or more. When pressed by the court what would happen in a hypothetical scenario the trial continued for two more weeks, she responded she thought it would be better to be dismissed.

Castellanos’s trial counsel argued Juror No. 152 should not be excused. He asserted Juror No. 152 was willing to deliberate that day. She also was not entirely clear on her position for the next week and did not exclude the possibility of deliberating the next week. Counsel further stated it seemed like the jury was at the end of their deliberations and they should come back with verdicts that day or within the next couple of days and Juror No. 152 should not be excluded from the possibility of deliberating during that time.

Relying on People v. Armstrong (2016) 1 Cal.5th 432 (Armstrong), and based on the questioning of Juror Nos. 111, 114, 150, and 181, the trial court determined Juror No. 152 had not deliberated from the outset when she used her cell phone either to text or to use the Internet. It further opined there was no testimony she had participated from the start and when the others attempted to engage her, she responded with her “gut” feelings. The court explained Juror No. 152 tried to separate herself from the jury by trying to leave early once or twice. The court also found Juror No. 152 was not credible when she said she never texted except at lunch or during a recess. The court excused Juror No. 152, swore in an alternate, and the reconstituted jury began deliberations anew.

DISCUSSION

Castellanos asserts the trial court improperly discharged Juror No. 152 during deliberations when it failed to conduct an adequate inquiry. We agree.

Under section 1089 the trial court may discharge a juror at any time during trial if it finds the juror is “unable to perform his or her duty.” (§ 1089.) “A juror who refuses to deliberate may be removed ‘on the theory that such a juror is “unable to perform [her] duty” within the meaning of . . . section 1089.’ [Citation.]” (Armstrong, supra, 1 Cal.5th at p. 450.) “A trial court must conduct a sufficient inquiry to determine facts alleged as juror misconduct ‘whenever the court is put on notice that good cause to discharge a juror may exist.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 547.)

“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. [Citations.]” (People v. Cleveland (2001)

25 Cal.4th 466, 485 (Cleveland).) “If some inquiry is called for, the trial court must take care not to conduct an investigation that is too cursory. [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 710.) “In most instances, the court will interview all of the jurors before deciding whether a juror is unable or unwilling to deliberate. At a minimum, it must interview more than the complaining jurors. [Citation.]” (Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 553.)

“It is not uncommon for a juror (or jurors) in a trial 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.” (People v. Bowers (2001) 87 Cal.App.4th 722, 734.) “[F]ormal discussion is not necessarily required to reach a decision or conclusion by deliberation. In a given case to ‘deliberate’ means ‘to ponder or think about with measured careful consideration and often [but not necessarily] with formal discussion before reaching a decision or conclusion.’ [Citation.]” (Ibid.)

We review a trial court’s decision to discharge a juror for abuse of discretion, bearing in mind review involves a heightened standard that takes into account the reviewing court’s obligation to protect the defendant’s fundamental rights to due process and a fair trial by an unbiased jury. (Armstrong, supra, 1 Cal.5th at p. 450.) The juror’s inability to perform her duty must appear in the record as a “‘demonstrable reality.’” (Ibid.) The demonstrable reality standard requires the reviewing court do more than simply determine whether substantial evidence supports the trial court’s determination. (Ibid.)

“Under the demonstrable reality standard, a reviewing court’s task is more ‘than simply determining whether any substantial evidence in the record supports the trial court’s decision.’ [Citation.] ‘A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. . . . [¶] The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.’ [Citations.]” (Armstrong, supra,

1 Cal.5th at pp. 450-451.) Applying this heightened standard of review, we conclude the trial court abused its discretion in discharging Juror No. 152.

As an initial matter, the Attorney General asserts Castellanos forfeited his claim the trial court failed to conduct an adequate inquiry before excusing Juror No. 152. This was because Castellanos’s trial counsel, while he objected to Juror No. 152 being discharged, never specifically asked the court to speak with the non-complaining jurors. This initial objection is sufficient to preserve the issue for review.

As explained in detail above, on the third full day of deliberations, the jury foreman notified the court several jurors complained Juror No. 152 was not deliberating. The court conducted an inquiry of Juror No. 152, the jury foreman and the complaining jurors, but not the remaining six jurors. It then discharged Juror No. 152, finding she was unable to perform her duty under section 1089.

“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.” (Cleveland, supra, 25 Cal.4th at p. 485.) No one suggested Juror No. 152 entered deliberations with a fixed conclusion about the case. Similarly, Juror No. 152 did not refuse to speak to other jurors. Juror No. 152 admitted she tried to speed up some discussions because she, “want[ed] to get out of there” because she feared getting sick from one of the other jurors. However, we recognize cell phone usage can constitute an attempt to separate oneself from the rest of the jury, “a juror who reads a book or looks at messages on a cell phone during deliberations may be attempting to separate herself from the other jurors, and that such conduct may reflect a refusal to deliberate.” (Armstrong, supra, 1 Cal.5th at p. 452.)

Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640 (Boeken), is instructive. There, the foreperson sent a note to the court indicating Juror No. 5 was not participating in the discussion and was “‘sit[ting] away from the table and read[ing] her [B]ible instead of contributing to the group conversation.’” (Id. at p. 1686.) In response to the note, the court reread to the jury the instruction stating that all jurors should participate in all deliberations. (Ibid.) After receiving another complaint from the foreperson, the court interviewed Juror No. 5 in chambers. Juror No. 5 denied she had been reading her Bible during deliberations and also denied she sat away from the table, failed to listen, or slept during deliberations. (Ibid.) After receiving another complaint, the trial court questioned each juror individually in chambers. Other jurors reported Juror No. 5 became angry after she was not elected the foreperson. (Id. at p. 1687.) Afterwards, Juror No. 5 would turn her chair around and sit with her back to the other jurors on both days of deliberations. (Ibid.) Aside from reading, she also appeared to be sleeping much of the time or sat with her eyes closed. (Ibid.) From these interviews, the court determined Juror No. 5 had “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 . . . she was a member of the deliberating jury.” (Id. at p. 1688.) Based on these findings, the Court of Appeal determined the trial court conducted an adequate inquiry before discharging the juror. (Ibid.)

Unlike in Boeken where the entire jury was questioned, the trial court here probed only the foreperson, four other jurors suggested by the foreperson, and the discharged juror. Out of the sample suggested by the foreperson, essentially the complaining jurors, only Juror Nos. 111 and 114 referenced Juror No. 152’s cell phone use as an issue. Instead, most of the jurors questioned complained not that Juror No. 152 never participated, but that she spoke a minimal amount, only answered direct questions, and did not join in discussions. This stands in contrast to the situation in Boeken, where the juror at issue turned her back on the jury and read, slept, or refused to engage. Instead, on this record Juror No. 152’s behavior suggests not a refusal to deliberate from the outset, but instead a failure to deliberate well, which is not a proper basis for removal.

Juror No. 152 disagreed with the complaining jurors and explained she had already made up her mind about the case and did not want to rehash the same evidence and arguments. When she later informed the court about her “female issues,” she did not ask to be excused. She indicated she was prepared to continue the deliberations and she had not refused to have further discussions with the other jurors. Juror No. 152 also stated she was stressed out from being the lone holdout on the jury, but indicated she was seeking medical attention. The court then concluded she was not credible without inquiring of the remaining six deliberating jurors. “To find good cause for dismissal here opens the door to finding good cause for removing any juror who is upset to find that she is the lone holdout but remains willing to participate in a discussion of the defendant’s guilt.” (Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1429 [dis. opn. Of Nelson, J.].)

Juror No. 111 said she wrote the jury’s note seeking the court’s help based on a consensus, but the court failed to confirm this with the six non-complaining jurors. Juror No. 111 said Juror No. 152 was on her cell phone from the start of deliberations and the situation was getting worse. However, in light of Juror No. 152’s statement she had made a decision and was in the minority, and the complaining jurors wanted to continue deliberations until they were unanimous, the court should have inquired of the non-complaining jurors.

The complaining jurors description of Juror No. 152’s phone usage was not consistent. Juror No. 140 said he witnessed some phone usage, but the complaints mostly came from other jurors. Juror No. 114 described Juror No. 152 texting on and off throughout the course, texting “maybe every hour.” According to Juror No. 111, Juror No. 152’s texting was “constant.” Juror No. 181 was unable to speak to Juror No. 152’s phone use because she could not see it from her seat. The court said there were two radically different stories about Juror No. 152’s use of the phone.

Although the note indicated one juror “had not been participating since the beginning” the statements of the jurors questioned by the court contradicted that. Juror No. 114 said she did not know when she first noticed Juror No. 152 was not deliberating, but that it was early in the deliberations. Her statement suggests Juror No. 152 had been deliberating at the commencement of deliberations. Juror No. 111 said Juror No. 152 would respond if asked a direct question, again suggesting participation albeit limited. Juror No. 181 said Juror No. 152 only gave short responses and then contradicted herself, saying Juror No. 152 “hasn’t engaged at all.” The scope of the court’s inquiry did not give a clear indication Juror No. 152 was refusing to deliberate.

Without additional inquiry, the court simply did not have enough information to determine whether Juror No. 152 expressed a fixed conclusion from the start, or whether she participated for a reasonable period of time and expressed her belief that further discussion would not change her view, and she just disagreed with the majority. (See Cleveland, supra, 25 Cal.4th at p. 485.) Instead, the court took the word of the complaining jurors and determined Juror No. 152 was not being intimidated after having only inquired of the complaining jurors, who may have become frustrated by Juror No. 152’s unwillingness to change her position. The content of the jury’s note was telling. The jury did not ask the court how it could require Juror No. 152 to participate. The note asked specifically, “What is the process or possibility for replacing this juror with an alternate?” Whether the jury’s concerns were appropriate or just an effort to remove a holdout juror was a difficult determination for the court to make. The trial court could not make this determination without inquiring of the non-complaining jurors, especially when Juror No. 152 perceived herself as the lone hold-out. Accordingly, its inquiry was constitutionally inadequate. (People v. Barber (2002) 102 Cal.App.4th 145, 151-152.)

We appreciate the trial court is in a very difficult position when it attempts to determine whether a juror is deliberating. Juror No. 150 explained it was difficult to explain the extent of Juror No. 152’s participation because the court specifically prohibited the jurors from repeating what Juror No. 152 said in addition to what her gut told her. The court clearly understood its inquiry into possible grounds for discharge of a deliberating juror must be as limited in scope as possible to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations. The question was whether cell phone usage was sufficient evidence to determine Juror No. 152 was not deliberating.

Cell phone usage alone is insufficient to discharge a juror. Although the court instructed the jurors, they could not use the Internet, a dictionary, or electronic device, or cell phone in any way in connection with this case during your deliberations, cell phone usage unrelated to the case was not prohibited. Texting or scrolling on a cell phone by a juror during deliberations may be rude and irritating to other jurors, but the court must make a finding based on the evidence provided the offending juror is refusing to deliberate. Here, it appears the court’s inquiry was only to the complaining jurors and the discharged juror. We are left to speculate what the other six jurors would have said if asked.

Our task is more than a determination of whether substantial evidence supports the trial court’s decision. Under the demonstrable reality test, the record must show the court as trier of fact relied on evidence that, in light of the entire record, supports its conclusion that good cause existed for removing the juror. That Juror No. 152 believed the discussions had been repetitive and the jurors were all talking at the same time may explain why her participation was limited. Disagreement over the manner in which deliberation discussions were being conducted does not constitute a refusal to deliberate and is not a ground for discharge.

The record lacks sufficient evidence to show as a demonstrable reality Juror No. 152 was unable to perform her duty as a juror because the trial court failed to conduct an adequate inquiry into the allegations. Accordingly, the court’s decision to discharge her was an abuse of discretion. The error is prejudicial and requires reversal of the judgment. (Cleveland, supra, 25 Cal.4th at p. 486.) Double jeopardy does not bar retrial of the case. (People v. Hernandez (2003) 30 Cal.4th 1, 6.) In light of our conclusion the judgment must be reversed, we need not address Castellanos’s remaining claims.

DISPOSITION

The judgment is reversed in its entirety. Retrial of the case is not barred by the double jeopardy clauses of the state and federal Constitutions.

O’LEARY, P. J.

WE CONCUR:

SANCHEZ, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further statutory references are to the Penal Code.

[2] The court dismissed a fourth count charging Castellanos with street terrorism (§ 186.22, subd. (a)) between August 7 and August 13, 2012.