Filed 11/25/13 P. v. Vasquez and Juarez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G046668 (consol. w/ G047179) v. (Super. Ct. No. 09CF2301) HUBER JUAREZ VASQUEZ and

MANUEL HERNANDEZ JUAREZ, OPINION

Defendants and Appellants.

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Reversed. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Huber Juarez Vasquez. Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant Manuel Hernandez Juarez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent. * * * After the trial court replaced the jury foreperson during deliberations in a

joint trial, the newly-constituted jury convicted Huber Juarez Vasquez and his father,

Manuel Hernandez Juarez, of murder for slaying the man who smuggled Vasquez into the

country, Victor Camacho. The jury also convicted defendants of attempted murder for

wounding Camacho’s associate, Jose Garcia. Defendants contend replacing the juror

violated due process and their Sixth Amendment right to a jury trial, while the Attorney

General asserts the trial court was justified in replacing the juror because she could not

differentiate between first and second degree murder. The record, however, does not

support the Attorney General’s contention and does not support as a “demonstrable

reality” the juror’s inability to perform her duty. (People v. Williams (2011) 25 Cal.4th

441, 448 (Williams).) The trial court therefore erred in dismissing the juror, and we

reverse the judgment.

We find no merit in Vasquez’s argument his retrial is barred on due process

grounds because the prosecution delayed filing the murder and attempted murder charges

against him. The trial court found no prejudice in the 8-year delay that arose when

Vasquez implicated himself in the unsolved shooting. Because the record supports the

trial court’s ruling, there is no bar to retrial. The reversal of the judgment renders defendants’ other contentions moot.

Consequently, we need not address whether: (1) the prosecutor’s alleged failure to

adequately sanitize references to Juarez in Vasquez’s statement to Oregon police created

Aranda-Bruton error; (2) the prosecutor committed misconduct in referring to Vasquez’s

police statement to suggest Juarez’s guilt and in commenting on his lack of an alibi;

(3) the trial court erred in failing to instruct the jury they had to agree on (a) the facts

underlying the murder or (b) the overt act underlying Juarez’s and Vasquez’s alleged

2 conspiracy to commit the crime of brandishing a firearm; (4) the court erred in failing to

identify murder and attempted murder as natural and probable consequences of the

alleged brandishing conspiracy; and (5) the court erred in failing to instruct the jury self-

defense could apply not just to the murder and attempted murder charges but also to

brandishing.

I

FACTUAL AND PROCEDURAL BACKGROUND

Because we reverse the judgment, we discuss the facts of the alleged

offense only in a cursory fashion and we limit the procedural background to the issues we

address on appeal.

Vasquez, Alfonso Paredes, Cesar Pureco, Marcos Macedo, and two other

aliens crossed into the United States in April 2000 with the aid of smugglers. They

stayed at a safe house where Camacho and Garcia joined the operation and loaded them

into a Chevrolet Suburban. Garcia drove the vehicle to a rendezvous at a fast food

restaurant in Santa Ana, where Vasquez expected his father to meet him and pay the

smugglers. Instead, according to Vasquez, his uncle Roman appeared, handed Vasquez a

nine-millimeter handgun, kept a much larger gun for himself, and when a quarrel erupted over the payment amount, Vasquez pointed the gun at Garcia so he could exit the vehicle,

but Garcia reached for something on the floor of the front compartment. Vasquez fired

his weapon and heard two or three more shots, which he believed came from his uncle’s

gun. Vasquez and two or three others escaped with Roman in a blue car.

Police responding to the scene found Camacho slumped over in the

passenger seat of the Suburban and Garcia bleeding nearby, outside the vehicle. Garcia

3 underwent surgery and survived, but Camacho died from a gunshot wound to his chest.

The police also found a .45-caliber bullet casing at the scene.

Paredes told investigators that before the Suburban reached Santa Ana, he

overheard the driver engaged in a cell phone call in which he stated “the money” should

be brought to their destination. The driver made another call before they arrived. When

they arrived, Paredes saw “Juan” (later identified as Vasquez) exit the vehicle and then

someone who arrived in a blue car handed him a gun. An argument broke out between

the smugglers and Vasquez and his companion, Vasquez leaned back into the vehicle

through a back seat window, and although Paredes ducked down, he saw the gun

discharge and hit the driver. Pureco also gave a statement in which he explained he had

been returning from the bathroom when he saw Vasquez with a gun outside the passenger

side of the Suburban, and a struggle ensued when the front passenger reached for the gun

and it discharged, striking the driver. The police also interviewed Macedo, but like

Paredes and Pureco, he was unable to identify Juarez or his blue car as being at the scene.

The police found the smugglers’ cell phone in the Suburban and traced the

last number called to a home telephone number assigned to Juarez. Officers found a

receipt in Juarez’s car for repair work on a .45-caliber handgun, but the receipt was in Roman Hernandez’s name. Juarez denied any involvement in the shooting and explained

Roman was his brother, but he did not know where he was, and the police could not

locate him. In a police interview, Juarez admitted and then recanted previously having

obtained a driver’s license with his own photograph but in the name of “Roman Juarez.”

The case lay dormant for a year, but in July 2001, Oregon police arrested

Vasquez in a bizarre incident where farm nursery employees saw Vasquez drive

erratically from the freeway onto the nursery property, exit his vehicle, and fall to the

4 ground “on his hands and knees and crying and acting really strangely, really sorrowful,

and pleading” for his life in the nursery field. The responding officer arrested Vasquez

for reckless driving, trespassing, and on suspicion of driving under the influence, but the

officer did not administer a field sobriety or breath test because of Vasquez’s agitated

condition. Vasquez stated he feared for his safety because “he had done something

really, really bad . . . a long time ago,” and people were chasing him. At the jail,

Vasquez stated he “did not mean to shoot the man,” but he “was hitting him when the gun

went off” in the parking lot of a fast-food restaurant in Santa Ana, California.

Detective Joseph Garcia of the Oregon State Police conducted an initial

interview of Vasquez in which he spontaneously stated he had “accidentally” discharged

a firearm at or near a McDonald’s on Bristol Street in Santa Ana. He shot a “coyote” or

“coyote smuggler” who had brought him into the United States.

After consulting with the Santa Ana Police Department, Detective Garcia

interviewed Vasquez again the next day, and they role-played the shooting with Garcia as

the driver and Vasquez seated directly behind him. Vasquez denied seeing either of the

“coyotes” with a gun, but explained his gun went off when he thought the driver might be

reaching for something in the floorboard area. He also explained he was afraid the smugglers were not going to release him because they had threatened during the trip in

the Suburban that “if more money was not brought, then the people . . . would be

harmed.” Vasquez told Garcia that his uncle Roman was the person who showed up at

the rendezvous and handed him the gun, but in the eventual trial, the trial court excluded

this information.

Eight years passed until September 15, 2009, when Orange County

prosecutors filed criminal charges against Vasquez and Juarez after learning Juarez was

5 about to be deported by federal immigration authorities. Oregon authorities arrested

Vasquez and he was extradited to California. Before trial, both defendants moved to

dismiss the charges for preaccusation delay. The trial court denied the motion without

prejudice, and defendants renewed their motion after the jury’s guilty verdicts. The trial

court conducted a hearing in which the prosecution offered no explanation for the delay,

but the trial court explained: “I cannot say the defendant has demonstrated the actual

prejudice required. All I’ve heard is speculation about what somebody might say, might

not have said. I don’t know what the witness in Mexico said to whom. So I cannot say

that, based on this record, the defendant has been able to meet his burden, and the motion

is denied.”

We address in the discussion below the proceedings that led to the

foreperson’s discharge during deliberations.

II

DISCUSSION

A. Preaccusation Delay Does Not Require Dismissal of the Charges

Vasquez argues the 8-year delay before he was charged following his

interview with the Oregon police violated his due process right to a fair trial. He acknowledges his right to a speedy trial under the state and federal Constitutions is not

implicated because those rights attach, respectively, when a felony complaint is filed

(Cal. Const., art. I, § 15) or the defendant is held to answer (U.S. Const., 6th Amend..; see

generally People v. Martinez (2000) 22 Cal.4th 750, 754, 762-763 (Martinez)). “‘“Delay

in prosecution that occurs before the accused is arrested or the complaint is filed may

constitute a denial of the right to a fair trial and to due process of law under the state and

federal Constitutions.”’” (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan).)

6 “‘“The right of due process protects a criminal defendant’s interest in fair adjudication by

preventing unjustified delays that weaken the defense through the dimming of memories,

the death or disappearance of witnesses, and the loss or destruction of material physical

evidence.”’” (Ibid.)

Relying on inapposite federal speedy trial cases, Vasquez argues the length

of the delay alone establishes a presumption of prejudice. (Doggett v. U.S. (1992)

505 U.S. 647, 655.) But there is no presumption of prejudice for due process claims

based on preaccusation delay. (See United States v. Lovasco (1977) 431 U.S. 783, 789

(Lovasco); accord, Martinez, supra, 22 Cal.4th at p. 755.) Rather, statutes of limitations

provide the primary protection against stale criminal charges (Lovasco, at p. 789; People

v. Nelson (2008) 43 Cal.4th 1242, 1250), and there is no statute of limitations for murder

(Pen. Code, § 799; People v. Vasquez (2004) 118 Cal.App.4th 501, 505).

Accordingly, the defendant bears the burden to demonstrate prejudice

arising from the delay. (Cowan, supra, 50 Cal.4th at p. 430.) “‘“The prosecution may

offer justification for the delay, and the court considering a motion to dismiss balances

the harm to the defendant against the justification for the delay.” [Citation.]’ [Citation.]”

(Ibid.) In balancing these interests, “‘it is important to remember that prosecutors are under no obligation to file charges as soon as probable cause exists but before they are

satisfied that guilt can be proved beyond a reasonable doubt or before the resources are

reasonably available to mount an effective prosecution. Any other rule “would

subordinate the goal of orderly expedition to that of mere speed.” [Citation.]’ [Citation.]

On the other hand, ‘“[Prosecutors] cannot simply place gathered evidence on the ‘back

burner’ hoping that it will some day simmer into something more prosecutable.”’

[Citation.]” (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1329 (Mirenda).)

7 A “minimal,” prima facie showing of prejudice requires the prosecution to

explain the reasons for the delay. (Craft v. Superior Court (2006) 140 Cal.App.4th 1533,

1540-1541.) But the trial court “must engage in the balancing process only if the

defendant has shown actual prejudice. [Citation.] The reason is simple: ‘If defendant

fails to show prejudice, the court need not inquire into the justification for the delay since

there is nothing to “weigh” such justification against.’ [Citation.]” (Id. at p. 1541.) The

balancing test therefore operates on a sliding scale; if the defendant meets his initial

burden, then “‘[e]ven a minimal showing of prejudice may require dismissal if the

proffered justification for delay is insubstantial. By the same token, the more reasonable

the delay, the more prejudice the defense would have to show to require dismissal.’

[Citation.]” (People v. Conrad (2006) 145 Cal.App.4th 1175, 1185.)

“Whether preaccusation delay is unreasonable and prejudicial to a

defendant is a question of fact.” (Mirenda, supra, 174 Cal.App.4th at p. 1330.) On

appeal, we examine whether the trial court’s determination of prejudice, or a lack thereof,

is supported by substantial evidence. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th

899, 911-912.) The defendant must establish actual prejudice shown by particular facts,

not bare conclusory statements. (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.) “When unjustified prejudice to the defendant’s ability to defend has been established[,]

there can be no question that ... dismissal [is] required.” (Serna v. Superior Court (1985)

40 Cal.3d 239, 263-264.)

Here, the trial court concluded Vasquez failed to establish the requisite

prejudice to require the prosecution to justify the delay, and substantial evidence supports

the trial court’s conclusion. Vasquez asserts prejudice arose from the fact “numerous

specific pieces of potentially relevant evidence were lost to the delay . . . .” (Italics

8 added.) But it is not enough to speculate about potentially relevant evidence; it remains

the defendant’s burden to demonstrate actual prejudice. Vasquez fails to establish

prejudice by the absence of certain tangible evidence, including the vehicle in which he

was smuggled and Camacho was shot, the demolition of the fast food restaurant where

the shooting took place in the parking lot, and the loss of the Oregon officer’s interview

notes. He also claims the delay triggered prejudice arising from his intoxicated statement

to Oregon police because “it was too late to perform any physical tests to determine his

level of intoxication, which could have undermined the reliability or voluntariness of his

statements.”

The last of these claims is patently without merit. The inability to test

Vasquez’s intoxication level bears no relation to his charging delay claim because the

inability arose from the transience of alcohol or illicit substances in his system, not from

anything the prosecutor did or failed to do. Moreover, the Oregon police officer

reinterviewed Vasquez the day after his roadside apprehension, and nothing in the

officer’s testimony at trial suggested Vasquez remained under the influence during the

second interview, nor did Vasquez elicit in cross-examining the officer anything to

suggest Vasquez was incoherent at the time of that interview. Indeed, Vasquez relies on the second interview for his claim of self-defense. Specifically, his attorney argued in

closing argument that Vasquez feared the smugglers would extort additional funds from

his family based on his interview claim that he overheard their cell phone demand for

“more money,” and he also stated in the interview that he saw Camacho reach down

towards the floor of the vehicle before he shot him. In these circumstances, it is

speculative to conclude Vasquez might have gained anything to bolster his defense if

only he had been subjected to an unspecified physical test for intoxication.

9 Vasquez’s claim of prejudice based on the loss of the interviewing officer’s

notes is similarly speculative and unavailing. Vasquez complains that the Attorney

General in her briefing “does not explain why the loss of the notes was not prejudicial,”

but this misconstrues the burden, which rested on Vasquez to establish prejudice. He

suggests the notes “could have clarified Vasquez’s statement” (italics added) to the

Oregon officer, but this phrasing betrays the speculative nature of his claim, particularly

that a potential clarification necessarily would have benefited Vasquez and therefore

shown prejudice.

Vasquez argues “[t]he clearest demonstration of prejudice . . . came from

the loss of percipient witnesses and the faded memory of the single available witness.”

Specifically, two of the smuggled passengers in the Suburban, Macedo and Pureco, could

not be found at the time of trial and Garcia, the surviving victim, was imprisoned in

Mexico. Pureco’s statement to police that, while returning from the restroom, he

witnessed “a brief struggle” between the driver and Vasquez, who stood outside the

driver’s side door, supported Vasquez’s version of events and was admitted at trial. The

other passenger, Paredes, testified he was the only person remaining in the back seat of

the vehicle, but he did not witness the struggle because he ducked down as the confrontation escalated.

Vasquez complains he suffered prejudice from preaccusation delay because

“Pureco and the other two witnesses were unavailable to confirm [his] claim of self-

defense” based on his interview statement that he saw Camacho reach for something on

the floor of the vehicle. (Italics added.) The trial court reasonably could conclude

Vasquez’s claim of prejudice from what absent witnesses might have said was

speculative.

10 It is pure speculation that any of the absent witnesses had anything to offer

that would benefit Vasquez’s defense. Paredes had ducked down and therefore could not

see whether Camacho reached for anything and, given Pureco and Macedo were outside

the vehicle according to Paredes’s and Pureco’s testimony, neither appeared to be in

position to observe whether Camacho reached toward the floor of the vehicle. Nothing in

the police statement of the surviving victim, Garcia, suggests he observed anything

helpful to Vasquez or that he was inclined to offer exculpatory evidence, and Vasquez

does not rely on him.

Vasquez relies on Mirenda for the proposition that the absence of a witness

who can confirm an exculpatory account establishes prejudice. Mirenda illustrates the

type of evidence necessary to show prejudice. There, an eyewitness to a shooting told

police after the incident that the victim and the defendant had been arguing and the victim

was moving toward the defendant when he was shot, supporting the defendant’s self-

defense claim. But the witness “recently changed” her story and, in the intervening

27 years since the incident, the detective who had interviewed the witness had died and

was therefore unavailable to corroborate or impeach her initial exculpatory account.

(Mirenda, supra, 174 Cal.App.4th at p. 1331-1332.) Here, in contrast, none of the eyewitnesses gave an initial account

exculpating Vasquez, nor did any of them later recant an exculpatory account, which

would have demonstrated prejudice in the passage of time and loss of a witness to

corroborate the initial account. Instead, Vasquez attempts to spin from the passage of

time the mere possibility that some of the witnesses might have offered exculpatory

accounts if he had been charged and tried sooner, but this is pure speculation.

11 Similarly, there is no merit in Vasquez’s claim that Paredes’s fading

memory prejudiced him. Paredes had told police he overheard the smugglers demand

payment in their phone call along the way to the rendezvous, but by the time of trial he

did not recall making this statement. But this lack of recall in no way supports the

conclusion Paredes actually heard the smugglers demand more money as Vasquez

claimed in his own police statement. Vasquez argues that absent “the eight year delay,

Paredes could have been questioned about the smugglers’ demand for money, other

demands and threats made by the smugglers, and details of the entire telephone

conversation.” But it is pure supposition any of these questions would have yielded

information exculpating Vasquez.

Likewise, the trial court reasonably could find no prejudice in the

destruction of the smuggler’s vehicle or the restaurant where the shooting took place.

Vasquez only noted the loss of these potential evidentiary items and made no specific

claim of prejudice from their absence. Consequently, we conclude substantial evidence

supports the trial court’s conclusion Vasquez failed to establish the requisite prejudice to

warrant dismissal of the charges for undue delay. The matter therefore properly

proceeded to trial.

B. The Trial Court Erred by Dismissing the Jury Foreperson

Defendants contend the trial court violated due process and their right to a

jury trial by intruding into the jury’s deliberations with invasive questioning of the

foreperson that could not help but reveal and chill the jury’s deliberations. Alternatively,

they argue the court erroneously concluded the foreperson misunderstood the jury

instructions, and compounded that error by concluding she could not perform her duty as a juror because she was incapable of understanding the instructions. Penal Code

12 section 1089 provides for removal of a juror and replacement with an alternate for “good

cause shown,” including death, illness, or that the juror is “unable to perform [her] duty.”

We review a trial court’s removal of a juror for abuse of discretion.

(People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).) That discretion is “at

most a limited discretion to determine that the facts show an inability to perform the

functions of a juror, and that inability must appear in the record as a demonstrable

reality.” (People v. Compton (1971) 6 Cal.3d 55, 60 [reversal where trial court expressly

found juror’s remarks did not show he “‘would be unable to serve,’” but nevertheless

dismissed him “‘out of an abundance of caution’”].)

The Supreme Court in Cleveland cautioned that “a trial court’s inquiry into

possible grounds for discharge of a deliberating juror should be as limited in scope as

possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations.”

(Cleveland, supra, 25 Cal.4th at p. 485.) As the court elsewhere explained, “The mental

processes of deliberating jurors are protected . . . because ‘[j]urors may be particularly

reluctant to express themselves freely in the jury room if their mental processes are

subject to immediate judicial scrutiny. The very act of questioning deliberating jurors

about the content of their deliberations could affect those deliberations.’” (People v. Engelman (2002) 28 Cal.4th 436, 442-443 (Engelman).)

The secrecy of deliberations, however, is not “absolute and impenetrable”

(Engelman, supra, 28 Cal.4th at p. 443), for the trial court retains “a duty to conduct

reasonable inquiry into allegations of juror misconduct or incapacity” and “the decision

whether (and how) to investigate rests within the sound discretion of the court” (id. at

p. 442.) (See also Cleveland, supra, 28 Cal.4th at p. 476 [“The need to protect the

sanctity of jury deliberations . . . does not preclude reasonable inquiry by the court into

13 allegations of misconduct during deliberations”].) For example, the trial court may

remove a juror who “actually refuses” (Engelman, at p. 442) to deliberate (but see

Cleveland, at p. 486 [trial court erroneously concluded juror was “‘not functionally

deliberating’”]), and may also discharge a juror “who proposes to reach a verdict without

respect to the law or the evidence” (Engelman, at p. 442, citing Williams, supra,

25 Cal.4th at p. 463).

In Cleveland, the high court reviewed a record that did “not establish ‘as a

demonstrable reality’” the dismissed juror refused to deliberate. (Cleveland, supra,

25 Cal.4th at p. 485.) There, “[a]lthough the jury’s initial note to the trial court asserted

that Juror No. 1 ‘does not show a willingness to apply the law,’ it became apparent under

questioning that the juror simply viewed the evidence differently from the way the rest of

the jury viewed it.” (Id. at pp. 485-486.) The Supreme Court explained, “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.” (Id. at p. 485.)

Here, the trial court expressly recognized, “I don’t have somebody who is

refusing” to deliberate. Instead, the court viewed the problem as follows: “I have

somebody who, in some respects, is clearly following the rules . . . . [¶] But my inquiry

seems to be[:] is she having trouble with implied malice as a theory?” The trial court

concluded that “[i]f somebody believes that implied malice requires premeditation, they

14 are either unable to follow the law because they can’t understand it or they’re unwilling

to accept the law because they believe the law ought to be . . . different.” (Italics added.)

The Supreme Court addressed the latter scenario in Williams, where a juror

refused to follow the law. The juror admitted during deliberations that he disagreed with

the law criminalizing unlawful sexual intercourse between a minor and her 18-year-old

boyfriend, and would disregard it. The juror explained, “I’m trying as best I can, Judge.

And I’m willing to follow all the rules and regulations on the entire rest of the charges,

but on that particular charge, I just feel duty-bound to object.” (Williams, supra,

25 Cal.4th at p. 447.) The Supreme Court held that while a jury has the raw power “to

disregard, or nullify, the law” and thereby “acquit a criminal defendant against the weight

of the evidence” (id. at p. 449), a trial court is not obliged to stand idle when it learns a

juror intends to disregard his or her oath to follow the law. As the court explained, “A

juror who refuses to follow the court’s instructions is ‘unable to perform his duty’ within

the meaning of Penal Code section 1089. As soon as a jury is selected, each juror must

agree to render a true verdict ‘“according only to the evidence presented . . . and to the

instructions of the court”’ (Code Civ. Proc., § 232, subd. (b) []).” (Williams, at p. 448,

original italics.) Neither party and nothing in the record suggests the foreperson here

harbored a willful intent to disregard the trial court’s instructions. Willfulness, however,

is not the sole or even an indispensable criterion in assessing whether a juror is unable to

perform his or her duty. An inability to follow the court’s instructions, if apparent in the

record as a demonstrable reality, is similarly proper grounds for dismissal. (See

Williams, supra, 25 Cal.4th at p. 449 [recognizing trial court’s authority to discharge a

juror unwilling or “unable . . . to follow the court’s instructions”].)

15 In Williams, the Supreme Court favorably cited an earlier case by the same

name for the proposition that a juror may “properly [be] discharged because she ‘was

unable to comprehend simple concepts, was unable to remember events during

deliberations such as recent discussions or votes, and was not following the law.’”

(Williams, supra, 25 Cal.4th at pp. 448-449, citing People v. Williams (1996)

46 Cal.App.4th 1767, 1780-1781.) Indeed, as the Court of Appeal noted in People v.

Williams, the dismissed juror had “even attempted to alter the jury instructions.” (People

v. Williams, at p. 1780.) To the contrary, “the jury must follow the court’s instructions,

‘receiv[ing] as law what is laid down as such by the court.’ ([Pen. Code, § 1126.)”

(Engelman, supra, 28 Cal.4th at p. 442.) Accordingly, if a juror deliberately altered the

trial court’s instructions to eliminate any distinction between first and second degree

murder, or the juror proved to be wholly incapable of recognizing the offenses were

different, the trial court could properly discharge that juror.

The problem here, however, is that the imprecise questions the trial court

posed to the foreperson before dismissing her did not establish as a demonstrable reality

that she somehow altered the court’s instructions, or even that she misunderstood the law,

let alone that she was incapable of understanding or following it. The trial court did not face an easy predicament: “Jury questions can present a court with particularly vexing

challenges. The urgency to respond with alacrity must be weighed against the need for

precision in drafting replies that are accurate, responsive, and balanced.” (People v.

Moore (1996) 44 Cal.App.4th 1323, 1331.) The same is true in conducting careful

interviews with jurors to peel back layers indicating potential juror misconduct or a

juror’s inability to perform his or her duty.

16 Perhaps led astray by the phrasing of an individual juror’s note alerting the

court its rereading of the instructions had not resolved the matter, the trial court posed

two questions to the foreperson before dismissing her, but those questions did not

illuminate whether she misunderstood the law or was incapable of understanding it.

Specifically, the trial court’s first question, “[D]o you believe that implied malice or

malice aforethought requires any of the following: premeditation, planning, or ill

intent?” (italics added), echoed the phrasing of the juror’s note, but like the note,

erroneously combined portions of the court’s own instructions in a confusing manner. In

particular, while premeditation, planning, and ill will are not required to establish the

requisite malice, a murder committed with express malice does require unlawful intent.1

Because the trial court’s question intermingled the concepts of ill will and unlawful intent

in a novel conjunction of “ill intent,” the foreperson’s “yes” answer did not illuminate

whether she misunderstood the law, nor did it suggest that she could not follow the law.

The trial court’s second question and lack of follow up did not clarify

matters. The trial court asked the foreperson, “Do you believe that there is a difference, a

legal difference, in the definitions we’ve given you between first- and second-degree

murder,” and immediately dismissed her when she gave the following disjointed reply, “Based on the instruction that was given to us that says the first degree and the second

degree definition with [sic] the malice aforethought, that the definitions are the same.”

1 As the trial court explained in CALCRIM No. 520, which applies to both first and second degree murder, a person who commits murder must act with “a state of mind called malice aforethought,” “[m]alice aforethought does not require hatred or ill will toward the victim,” nor does it “require deliberation or the passage of any particular period of time.” (Italics added.) But, of the two kinds of malice aforethought, express malice and implied malice, a defendant “act[s] with express malice” if he or she “unlawfully intended to kill” the victim. (Implied malice requires an intentional act the defendant knows by its natural and probable consequences is dangerous, coupled with the defendant’s conscious disregard of life in committing the act.)

17 While the foreperson’s explanation was not a model of clarity, she correctly

articulated, as noted, that first and second degree murder are the “same” in that both

require malice aforethought. (CALCRIM No. 520; see fn. 1, ante.) “It is not always easy

for a juror to articulate the exact basis for disagreement after a complicated trial, nor is it

necessary that a juror do so.” (Engelman, supra, 28 Cal.4th at p. 446.) Jurors are not

legal scholars and if the trial court did not understand the foreperson’s answer, it could

not presume it signaled a misunderstanding of the law. The presumption under the

demonstrable reality standard is the opposite. Because there was no basis to conclude

from the foreperson’s correct answer that she misunderstood the law, and that she was

incapable of understanding it, the trial court erred in dismissing her.

We observe that the trial court has by statute “a primary duty to help the

jury understand the legal principles it is asked to apply.” (People v. Beardslee (1991)

53 Cal.3d 68, 97 (Beardslee).) Penal Code section 1138 provides, “After the jury have

[sic] retired for deliberation, . . . if they desire to be informed on any point of law arising

in the case . . . the information required must be given . . . .” Here, the jury sent a note to

the trial court during deliberations asking, “Does malice aforethought mean

premeditation or predetermination?” The jury had begun the note with the following language, but crossed it out: “Please explain to us in layman’s term[s] what is malice

aforethought[t] means [sic] premeditation?” Clearly the jury sought instruction on malice

aforethought, and the trial court responded appropriately by directing the jury to reread its

instructions, as follows: “520 — Malice Aforethought [and] 521 [regarding]

Deliberate/Premeditation.”

But another message from the jury room signed by 11 jurors, and not the

foreperson, soon indicated the rereading had not had its desired effect. The note stated:

18 “Your Honor, we have a juror that is unwilling and unable to view the law as presented to

us, the jury. [¶] The juror is using [her] own beliefs and presuppositions of what the law

is and should be. [¶] I/we trust your judgment in this matter, but in all honesty, the time,

effort and taxpayer money will all be wasted unless a change is made.”

The trial court called four of the jurors into chambers, one at a time and

with counsel observing but silent, and asked them to describe the problem. They

believed the foreperson misunderstood the law. When the court inquired whether she

was still deliberating, one juror answered: “Yes. We can’t get to that point where we can

decide [the verdict?] because she’s not agreeing with the law, you know, the law that we

have. Remember how we had [CALCRIM Nos.] 520, 521? Please read that. She has

her own law, something like that.” Another juror put it this way: “Let’s say we go

through a scenario. We put up checklists, and although [the] checklists concur with a

certain individual law, we all agree upon it, even the individual [the foreperson], but then

[she] disagrees with her own answer.” Juror No. 152 concluded the problem was that the

foreperson “thinks that premeditation is malice aforethought,”2 and that first and second

degree murder are “the same thing.”

The trial court then interviewed the foreperson, who explained there remained “disagreement as to the definition of ‘murder’” and a “question or [] confusion”

about malice aforethought and its application, despite the trial court’s direction to reread

its instructions. The foreperson elaborated: “We asked whether malice aforethought is a

[sic] premeditation or a predetermination, and some of us believe that the . . .

premeditation and predetermination only applies to murder one or first-degree murder,

rather than it applies to . . . second-degree murder, and I — the instruction is not very

2 We note that premeditation may indeed constitute malice aforethought, as in the case of premeditated murder.

19 clear. Because in the second page of the instruction, it indicated that it’s first-degree

murder is [sic: if?] premeditated and predetermined and willfully, and if that doesn’t

apply, then you go to the second-degree murder [instruction], which is going to

[CALCRIM 521], which is [sic: includes the?] definition of malice aforethought, which

is the state of malice aforethought, and that’s where the hangup is.”

It may be that the foreperson misread the word “aforethought” in “malice

aforethought” to mean “premeditated,” given that the prefix “afore-“ and root “thought”

mean the same as “pre-“ and “meditated.” On that view, she may have confused the

“malice aforethought” necessary for both first and second degree murder to require

“premeditated malice.” A simple instruction, in layman’s terms as the original jury note

requested, could have clarified that premeditation is a form of malice aforethought, but

malice aforethought does not require premeditation. The trial court, however, elected to

simply reread to the jury the same two jury instruction it had already directed the jury to

reread, namely CALCRIM Nos. 520 and 521.

While the trial court faced a difficult predicament, with little assistance

from counsel on how to meet the jury’s questions, it fell to the court as its statutory duty

to answer the jury though “guidance may not come easily to hand, or is not supplied by counsel[.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 1047 (Ross).) There appears

to have been little prospect that simply rereading the same instructions would resolve the

matter. In Beardslee, the jury submitted a note requesting clarification of the instruction

defining “deliberate and premeditated murder,” but the trial court informed counsel he

would not respond because “[e]very time a judge opens his big mouth and tries to explain

what an instruction means, he puts his foot in it and the Appellate Court promptly bites it

off.” (Beardslee, supra, 53 Cal.3d at p. 96.) The Supreme Court explained that while the

20 judge’s reluctance to strike out on his own was understandable, “a court must do more

than figuratively throw up its hands and tell the jury it cannot help.” (Id. at p. 97.) The

court’s duty to aid the jury may require it to “elaborate on [an] instruction after the jury

expressly asks” it to do so, and “‘“[a] definition of a commonly used term may

nevertheless be required if the jury exhibits confusion over the term’s meaning.”’”

(Ross, at p. 1047.)

Thirty minutes after the trial court reread the instructions, a juror sent

another note advising the reinstruction had not helped. The trial court again interviewed

the foreperson and a different group of four jurors in chambers. The foreperson again

explained, “That’s where our hang-up is, on the murder, definition of the murder. Some

of us believe it differently.” The four jurors, including the one authoring the most recent

note to the court, stated variously that the foreperson “a hundred percent agreed that

[under] the law [as] given to us there’s no difference between first- and second-degree

murder,” “I don’t think she understood what the law is,” and that they therefore believed

she was “not willing to follow the law.” Then, as discussed above, the trial court

interviewed the foreperson a third time, posed its two questions to her, and dismissed her

even though, as discussed, her answers did not show to a demonstrable reality that she misunderstood the law or, more importantly, that she was incapable of doing so and

therefore could not perform her duty.

We have assumed in our discussion, without deciding, that the trial court

did not also err by delving too deeply in its multiple interviews into the jurors’

deliberative mental processes. The issue is close. The trial court was cognizant of the

delicate nature of its inquiry, cautioning the foreperson, “I don’t want to know what your

personal views are,” when she began saying, “I personally believe — .” But the

21 interviews nevertheless revealed the jurors’ thought processes in statements that included

the foreperson’s explanation for the impasse: “[S]ome of us do not believe that -- there’s

malice aforethought in the case and some believe -- or I should say they believe that, you

know, it is the intention to kill and it’s the implied, which is the types [sic] of -- how do

you call this? -- The type of the malice aforethought.”

As the Supreme Court recognized in Engelman, Justice Kennard in her

concurring opinion in Williams “properly warned of the risk inherent in ‘permit[ting] trial

judges “to conduct intrusive inquiries into . . . the reasoning behind a juror’s view of the

case, or the particulars of a juror’s (likely imperfect) understanding or interpretation of

the law as stated by the judge”. . . .’” (Engelman, supra, 28 Cal.4th at p. 445, italics

added.) In Williams, Justice Kennard observed that “[r]ather than asking only whether

Juror No. 10 was willing to follow the court’s instructions on the law, the court asked

questions that were likely to — and did — reveal whether Juror No. 10 was of the view

that defendant should be convicted or acquitted of the crime of unlawful sexual

intercourse, and the reasons for that view.” (Williams, supra, 25 Cal.4th at p. 465

(concur. opn. of Kennard, J.).) Justice Kennard noted “[t]his unnecessarily broad inquiry

may well have infringed upon the secrecy of the jury’s deliberations,” but she did not reach the issue because the defendant had not raised it in his petition for review, which

centered on the allegedly unfettered right of jury nullification. (Ibid.)

Here, the matter was complicated by the jury’s express request for aid in

understanding “malice aforethought,” which the trial court was duty-bound to answer.

But we need not reach the issue of whether the trial court in attempting to answer the

question delved too far into the jury’s deliberative process. As discussed, the trial court’s

colloquy with the foreperson did not establish as a demonstrable reality that she not only

22 misunderstood the law, but was incapable of comprehending it. The trial court therefore

erred in dismissing her.

III

DISPOSITION

The judgment is reversed.

ARONSON, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.

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