People v. Salazar CA4/1

DISCUSSION

I. Dismissal of Juror No.

Defendant contends the trial court erred by dismissing one of the jurors, Juror No.

3, during their deliberations based only on an inquiry of the jury foreperson and Juror No.

3, and no other jurors. He maintains the court's insufficient inquiry, combined with its

misinterpretation about the scope of its discretion, led to an arbitrary and capricious

decision, constituting an abuse of discretion.

A. Background

The jury commenced deliberations shortly after about 9:00 a.m. on August 14,

2012. After it reassembled the next day, the jury asked for a read-back of Michelle and

Mark's testimony. Deliberations resumed on and off throughout the day, and the read-

back was completed by 3:40 p.m., after which the jury left for the day. Just after 11:

a.m. on the third day of deliberations, the jury foreperson sent a note to the judge

indicating that one of the jurors, Juror No. 3, was "not cooperating, wants to leave,

making people feel uncomfortable. She is sitting in the restroom and does not want to

cooperate." The foreperson also requested all of Mark's testimony. The court, with

counsel present, decided to question…