Salinas-Jacobo

*363 *762 When a jury foreperson in a criminal trial discloses the jury has reached a verdict on some counts but has not been able to reach a verdict on others, a trial court must tread very carefully before it discharges a juror for failing to perform his or her duties under Penal Code section 1089. At stake is a defendant's right to due process and a fair trial by an unbiased jury, and we review a trial court's decision to discharge a juror in this circumstance under a "demonstrable reality" test, requiring a showing that the trial court " did rely on evidence, that in light of the entire record, supports its conclusions" that a juror was actually unable to perform. ( People v. Armstrong (2016) 1 Cal.5th 432 , 450-451, 205 Cal.Rptr.3d 518 , 376 P.3d 640 ( Armstrong ).) In this appeal, based on questioning of three jurors, including the juror who was eventually discharged, the trial court discharged a juror for considering evidence outside the record, considering punishment, and not following the jury instructions. We conclude that these failures to perform the juror's duty were not shown as a demonstrable reality, and we reverse the judgment.

FACTUAL AND PROCEDURAL…