PEOPLE v. METTERS

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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. James R. METTERS, Jr., Defendant and Appellant.

No. A074986.

Decided: March 10, 1998

John Ward, under appointment by the Court of Appeal under the First DistrictAppellate Project'sIndependent Case System, for Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, John R. Vance, Jr. Deputy Attorney General,for Respondent.

I.

Introduction%H

Appellant James R. Metters, Jr. was convicted of the admitted robbery of a Wendy's restaurant in Oakland that occurred on June 13, 1994.   At trial, appellant contended he was forced to commit the crime only because of duress and out of necessity created when drug dealers to whom he owed money threatened to “do a drive-by” on appellant and his family if he did not pay them what was owed by 9 p.m. Appellant claims error in the trial court's refusal to instruct on the legal defenses of duress and necessity.   He further contends that his constitutional rights were violated when the court dismissed a juror during deliberations known to be the sole holdout for a not guilty verdict, and by the court's use of the 1994 revised CALJIC No. 2.90 jury instruction on reasonable doubt.   Last, he asserts sentencing error, including a claim that the length of his sentence (35 years) constituted cruel and unusual punishment.   We affirm.

II.

Background

On June 13, 1994, appellant ordered food at a Wendy's restaurant from the cashier, Joyce Wilson.   When Wilson asked for payment, appellant announced it was a robbery and that he had a gun.   He told her “not to move because he wasn't go[ing to] hurt [her]” and directed Wilson to “give him all the 20's.”   Appellant's right hand was wrapped in cloth, and he held it in a manner which simulated that he held a gun.   Believing he was armed, Wilson gave appellant the money in the cash register.   After appellant left, Wilson reported the incident to her manager.   The manager relayed the information to Oakland Police Sergeant Barney Rivera, who fortuitously was stopped at the Wendy's drive-through window.   Sergeant Rivera pursued appellant and arrested him several blocks away.   Nearby, Sergeant Rivera recovered appellant's rolled-up coat and $383 in cash.

An information was filed charging appellant with robbery (Pen.Code,1 § 211) and alleging enhancements based on two prior robbery convictions.  (§ 667, subd. (a).)

Trial commenced in February 1996.   At the conclusion of the prosecution's case, appellant made the following offer of proof in support of jury instructions on the defenses of duress and necessity:  On the day of the holdup, appellant was abducted by drug dealers to whom he owed money.   He was permitted to make telephone calls to attempt to raise the money.   He contacted his aunt, who brought $50 to the dealers.   They took the $50 and agreed to free appellant after warning him that he and his family would be killed unless he repaid the rest of the money that night.   Appellant committed the robbery in order to prevent the dealers from killing him and his family.

“As a backdrop,” the offer of proof included facts predating the date of the robbery.   In February 1994, appellant was shot at by the same drug dealers.   He contacted the police and attempted to have his parole revoked because he feared for his life.   Appellant met with his parole agent, who placed him on a waiting list for a halfway house in another part of Oakland.   He lost this placement when he was erroneously transported to San Quentin State Prison on a parole hold.   Upon his release, appellant was forced to return to his old neighborhood until another placement became available.

The court tentatively denied appellant's request for instructions on duress because the threat was not immediate and the drug dealers did not direct appellant to commit the robbery.   The court also expressed concern about the applicability of the necessity defense because appellant had the alternative of reporting the incident to the police.   Appellant augmented his offer of proof, stating that his failure to report the incident was motivated by fear of retaliation, and his belief that the police would not be able to protect him.

Thereafter, at appellant's request, an Evidence Code section 402 hearing was held “for the record.”   At the hearing Oakland Police Sergeant Sharon Banks testified that she had interviewed appellant on February 28, 1994, shortly after the previous shooting incident had occurred.   During their interview, appellant told her someone had shot at him.   Appellant also informed Banks that he was in trouble because he owed drug dealers $500 for crack.   He requested that Banks violate his parole for drug possession so he could be sent back to prison.   She passed this information along to his parole agent.   Banks took no further action because appellant did not request an investigation of the shooting, did not request police protection, and did not provide her with sufficient facts to commence an investigation.

California Department of Corrections Parole Agent Ramon DeCastro testified appellant met with him earlier in 1994 to request assistance with housing and employment.   Appellant told him he wanted to get out of his current living environment.   DeCastro arranged for appellant to be placed on a waiting list for a halfway house.   Appellant obtained a job at the Old Spaghetti Factory in Oakland.   Appellant lost his placement on the waiting list when he was transported to San Quentin State Prison on a parole hold.   Later, appellant was released because there was no evidence of parole violations.   Although DeCastro received information concerning appellant's conversation with Sergeant Banks, he did not recall appellant contacting him to discuss the shooting incident or his request to return to prison.

Appellant's supervisor at the Old Spaghetti Factory testified that appellant was employed there sometime during April through June 1994, that he earned $5.45 per hour for 15-20 hours of work per week, and that he was paid every other Sunday.   The company does not give salary advances to its employees.

Appellant's aunt, Mary Metters, testified that she lived near an area where illicit drug were sold.   She had “heard” of a number of instances where drug dealers retaliated against people who reported them to the police.   On the date of the robbery, appellant telephoned her and asked her to bring $50 to a specified location.   He told her that he “owed some guys some money” and that “he was being held against his will.”   She delivered the money to appellant between 4 and 5 p.m. Appellant's aunt did not contact the police because she feared retaliation.   If she thought appellant's life was in danger, appellant's aunt would have given him whatever money she “had ․ to give.”   Although she did not recall the exact amount of money she had on deposit at the bank that day, appellant's aunt testified “It could have been in the area between [$]2 [00] or $300.”

After hearing this testimony, the court adopted its tentative ruling that appellant was not entitled to instructions on duress.   The court also rejected appellant's request to instruct the jury on the necessity defense because appellant had two legal alternatives:  (1) to call the police, or (2) to obtain additional money from his aunt.2

Appellant testified on his own behalf.3  According to appellant, he had owed $500 to drug dealers for approximately three or four years.   At approximately 10:30 a.m. on the morning of the Wendy's robbery, these drug dealers kidnapped him at gunpoint.   They held him for four hours while he arranged for his aunt to bring him $50 to partially pay the debt.   At approximately 8 p.m., they agreed to release him as long as he returned with $200 within one hour.   On direct examination, appellant testified that the drug dealers told him to “get [the rest of the money] however I could get it, do whatever I had to do, ․ ” He later explained that the drug dealers told him “to go out and get the money, they didn't care what I had to do to get it.   If I had to rob somebody, rob somebody, do whatever I had to do to get the money.”   If appellant didn't return with the money, the dealers threatened to “do a drive-by” at appellant's aunt's house.

Appellant had resigned from his job with the Old Spaghetti Factory shortly before the Wendy's incident, and believed he had no legitimate way of obtaining the money.   He did not seek police assistance because appellant did not think they could protect his family even if they could protect him.   Appellant explained that he did not believe the police had protected him successfully in the past.

On cross-examination, appellant admitted that upon his release by the drug dealers, he did not attempt to warn his family of the threatened “drive-by,” nor did he approach his aunt to borrow additional funds.   Appellant testified that he decided to commit a robbery to protect himself and his family.   He admitted committing the Wendy's robbery, but claimed he did not intend to permanent deprive Wendy's of the stolen money.   On cross-examination, appellant acknowledged that he had no intent to return the stolen money to Wendy's.   Following his arrest appellant did not report the threatened “drive-by” to the police, nor did he take subsequent steps to warn his family of the threat.

During the course of jury deliberations, the court excused one of the jurors for misconduct and replaced her with an alternate.4  The jury was instructed that one of its members had been excused for legal cause and that they should not consider this fact for any purpose.   The reconstituted jury was directed to begin deliberations anew.   The jury convicted appellant of second degree robbery and found true the allegations that appellant had been convicted of two prior robberies.   As a third-strike offender, appellant was sentenced to 25 years to life imprisonment for the robbery (§ 667, subd. (e)(2)), plus a determinate sentence of 10 years for the prior serious felony enhancements.  (§ 667, subd. (a).)  This timely appeal followed.

III.

DiscussionA. Jury Instructions1. Standard of Review

 “A trial court need only give those requested instructions supported by evidence that is substantial.  [Citation.]”   (People v. Bacigalupo (1991) 1 Cal.4th 103, 125, 2 Cal.Rptr.2d 335, 820 P.2d 559 vacated and remanded on other grounds sub nom.  Bacigalupo v. California (1992) 506 U.S. 802, 113 S.Ct. 32, 121 L.Ed.2d 5.)   To warrant instructions on the defenses of duress and necessity, the defendant must proffer substantial evidence on their central components.  (Ibid.;  People v. Kearns (1997) 55 Cal.App.4th 1128, 64 Cal.Rptr.2d 654 review den (Kearns ).)   In evaluating whether appellant was entitled to these instructions, we must take the proffered evidence as true, “regardless of whether it was of a character to inspire belief.  [Citations.]”  (People v. Wilson (1967) 66 Cal.2d 749, 762, 59 Cal.Rptr. 156, 427 P.2d 820.)  “ ‘Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.’  [Citations.]”  (People v. Flannel (1979) 25 Cal.3d 668, 685, 160 Cal.Rptr. 84, 603 P.2d 1 quoting People v. Wilson, supra, 66 Cal.2d at p. 763, 59 Cal.Rptr. 156, 427 P.2d 820.)

2. Duress

Appellant contends the court erroneously refused to instruct the jury on the duress defense.   We reject this contention concluding, as did the trial court, that appellant did not proffer substantial evidence on two central components of the defense, namely, 1) that the crime be committed in response to an immediate threat, and 2) that the threat be accompanied by a demand to commit the specific crime charged.   We will discuss each of these components in turn.

a. Immediacy of Threat

 The defense of duress “negates an element of the crime charged--the intent or capacity to commit the crime--and the defendant need raise only a reasonable doubt that he acted in the exercise of his free will.  [Citation.]”  (People v. Heath (1989) 207 Cal.App.3d 892, 900, 255 Cal.Rptr. 120 (Heath ).)   To establish the defense, the defendant must show he acted under such immediate threat or menace that he reasonably believed his life would be endangered if he refused.  (Ibid.)

 The duress defense may not be asserted unless the threat is immediate.  (People v. Perez (1973) 9 Cal.3d 651, 658, 108 Cal.Rptr. 474, 510 P.2d 1026;  People v. Lo Cicero (1969) 71 Cal.2d 1186, 1191, 80 Cal.Rptr. 913, 459 P.2d 241 (Lo Cicero ) disapproved on another point in Curl v. Superior Court (1990) 51 Cal.3d 1292, 1301-1302, fn. 6, 276 Cal.Rptr. 49, 801 P.2d 292;  Heath, supra, 207 Cal.App.3d at p. 900, 255 Cal.Rptr. 120;  People v. McKinney (1986) 187 Cal.App.3d 583, 587, 231 Cal.Rptr. 729 (McKinney );  People v. Otis (1959) 174 Cal.App.2d 119, 344 P.2d 342 (Otis ).)  “Because of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime.   The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent.   The unlawful acts of the person under duress are attributed to the coercing party who supplies the requisite mens rea and is liable for the crime.  [Citation.]”  (People v. Condley (1977) 69 Cal.App.3d 999, 1012, 138 Cal.Rptr. 515.)  “The common characteristic of all the decisions upholding the [duress] excuse lies in the immediacy and imminency of the threatened action:  each represents the situation of a present and active aggressor threatening immediate danger;  none depict a phantasmagoria of future harm.”  (Otis, supra, 174 Cal.App.2d at p. 125, 344 P.2d 342.)

 Our review of the relevant cases reveals that the temporal requirement of immediacy is measured as of the time the crime is committed, not when the threat occurs.   For example, in Lo Cicero, supra, 71 Cal.2d 1186, 80 Cal.Rptr. 913, 459 P.2d 241, Louis Lo Cicero raised duress as a defense to charges of selling marijuana to undercover agent David Fuentes.   Lo Cicero testified that Fuentes approached him at a pool hall and asked to purchase marijuana.  (Id. at pp. 1188-1189, 80 Cal.Rptr. 913, 459 P.2d 241.)   Lo Cicero initially refused his request, but changed his mind when a “lieutenant” for a drug syndicate operating in the area, ordered him to deal.  (Ibid.) Lo Cicero had been threatened in the past and feared that defiance of this order would result in his murder by the syndicate.  (Id. at p. 1189, 80 Cal.Rptr. 913, 459 P.2d 241.)   Although Lo Cicero believed Fuentes was a police officer, he subsequently met Fuentes at a restaurant and sold him the marijuana, explaining “I would rather go with a police officer than I would in a pine box.”  (Id. at p. 1190, fn. 4, 80 Cal.Rptr. 913, 459 P.2d 241.)

Our Supreme Court determined this testimony was insufficient to satisfy the immediacy requirement of the duress defense.  (Lo Cicero, supra, 71 Cal.2d at p. 1190, 80 Cal.Rptr. 913, 459 P.2d 241.)   The court quoted with approval the observation in Otis, supra, 174 Cal.App.2d at p. 125, 344 P.2d 342 that decisions upholding the duress defense have uniformly involved “a present and active aggressor threatening immediate danger;  ․ ” (Lo Cicero, supra, 71 Cal.2d at p. 1191, 80 Cal.Rptr. 913, 459 P.2d 241.)   Further, the court noted that jury instructions requiring the danger to be present and immediate at the time the crime is committed have been repeatedly upheld.  (Id. at p. 1191, 80 Cal.Rptr. 913, 459 P.2d 241.)   Because no member of the syndicate was present at the time of the sale, the court concluded Lo Cicero's testimony failed to establish an immediate threat of violence.  (Ibid.) Moreover, Lo Cicero was aware that Fuentes was a police officer, yet he “did not attempt to avoid the transaction or seek police protection;  ․ ” (Ibid.)

Similarly, in McKinney, supra, 187 Cal.App.3d 583, 231 Cal.Rptr. 729, defendant sought to defend charges that he had assaulted a fellow inmate in a metal shop class by proving:  “(1) [Gerald] Bean [his victim] had previously threatened him with a ball-peen hammer and later attacked him;  (2) other inmates threatened to kill defendant if he failed to ‘settle the problem with’ Bean or if he sought protective custody, (3) defendant had been warned that Bean planned to attack him with a ‘shank’ concealed in the metal shop, and (4) defendant reported to prison authorities that Bean attacked him, but the authorities failed to do anything about it.”  (Id. at p. 585, 231 Cal.Rptr. 729.)

The court concluded this offer of proof was insufficient, reasoning “[t]he courts have long recognized that duress is only an effective defense when the actor responds to an immediate danger;  ‘a fear of future harm to one's life does not relieve one of responsibility for the crimes he commits.’  [Citations.]”  (McKinney, supra, 187 Cal.App.3d at p. 587, 231 Cal.Rptr. 729.)   The death threats by other inmates did not satisfy the immediacy requirement because the other inmates were not present in the shop class during the attack.  (Ibid.) Further, even assuming that Bean had hidden a shank in the metal shop classroom in order to inflict harm on defendant, Bean was not in a position to threaten defendant at the time of the assault.  (Ibid.) Any threat posed by Bean was not immediate because Bean was busy receiving individual instruction when defendant assaulted him from behind.  (Ibid.)

A case involving more compelling facts than the present one is Heath, supra, 207 Cal.App.3d 892, 255 Cal.Rptr. 120, in which defendant asserted the duress defense to a charge of burglary.   Defendant testified that he owed Darryl Sodersten approximately $370 for a drug purchase made earlier on credit.  (Id. at p. 896, 255 Cal.Rptr. 120.)   After Sodersten suggested that defendant commit a burglary to repay him, he drove defendant to a residence, pointed a loaded gun at him, threatened to kill defendant if he refused to commit the burglary, and waited outside the residence.  (Ibid.) Acknowledging that the threat posed by Sodersten was immediate at the time defendant broke into the residence, the court went on to explain that the threat lost its immediacy after defendant left the vehicle, walked to the residence, secured entry, and “rummaged” through the house.  (Id. at p. 902, 255 Cal.Rptr. 120.)  “Once [defendant] was outside the immediate presence of Sodersten, the threat became one in the immediate future allowing [defendant] an opportunity, albeit brief, to balance his options, ․ ” (Ibid.)

 These cases establish that a threat, no matter how serious or extreme, loses its immediacy if the aggressor is not present and capable of carrying out the threatened harm at the time of the crime.   Thus, absent that temporal propinquity between the threat and the crime, the defense of duress will not act legally to negate criminal intent.

 Applying this principle to the case at hand, we conclude that appellant's offer of proof failed to satisfy the immediacy requirement as a matter of law.   The proffered evidence clearly indicates that the drug dealers posed no threat of immediate harm.   Although the drug dealers had kidnapped and threatened appellant at gunpoint earlier that day, when appellant robbed Wendy's he was no longer in the custody of the drug dealers, and the drug dealers were not physically present at the scene of the crime.   Thus, appellant failed to demonstrate the existence of a “present and active aggressor threatening immediate danger” at the time the robbery was committed.  (Otis, supra, 174 Cal.App.2d at p. 125, 344 P.2d 342.)

To hold otherwise would excuse the commission of a crime against an entirely innocent person on the basis of a future danger capable of being averted by innocent methods.  (Otis, supra, 174 Cal.App.2d at p. 125, 344 P.2d 342 citing People v. Martin (1910) 13 Cal.App. 96, 103, 108 P. 1034.)   The law cannot countenance such an anomalous result.  (Ibid.)

b. Demand to Commit Charged Crime

 In order to establish the duress defense, the threat or menace “must be accompanied by a direct or implied demand that the defendant commit the criminal act charged.”  (People v. Steele (1988) 206 Cal.App.3d 703, 706, 253 Cal.Rptr. 773 (Steele );  People v. Richards (1969) 269 Cal.App.2d 768, 773, 75 Cal.Rptr. 597;  § 26.)   We also conclude that appellant did not provide sufficient evidence from which the jury could conclude that this direct or implied demand requirement was satisfied.

In Steele, this appellate division upheld the trial court's refusal to instruct the jury on duress as a defense to charges that Steele attempted to escape from prison.   The court reasoned that a direct or implied demand to commit the crime is required by section 26 which states “ ‘that a person is not “capable” of committing a crime if he “committed the act or made the omission charged under threats or menaces sufficient to show that [he] had reasonable cause to and did believe [his life] would be endangered if [he] refused.”  ’ [Citation.]”  (Ibid.) The court agreed that “ ‘[t]he statute, since it refers to the option to refuse or accept, contemplates that the threat or menace be accompanied by a direct or implied demand or request that the actor commit the criminal act.’  ” (Ibid., quoting People v. Richards, supra, 269 Cal.App.2d at p. 773, 75 Cal.Rptr. 597.)   Because no evidence was presented to indicate that the inmates threatening Steele demanded his escape, the court held that the implied or direct demand requirement was not satisfied.  (Steele, supra, 206 Cal.App.3d at p. 707, 253 Cal.Rptr. 773.)

We agree with the court in Steele that duress cannot be established unless the threat is accompanied by a direct or implied demand to commit the prohibited act.   Beyond the rule's statutory underpinnings, we note that it would not be consistent to hold “the coercing party [supplied] the requisite mens rea and is liable for the crime” (People v. Condley, supra, 69 Cal.App.3d at p. 1012, 138 Cal.Rptr. 515), unless the coercing party demanded that the specific unlawful act charged be committed.

Here, appellant testified that the drug dealers told him to “get [the rest of the money] however I could get it, do whatever I had to do.”   He later explained “They told me to go out and get the money, they didn't care what I had to do to get it.   If I had to rob somebody, rob somebody, do what I had to do to get the money.”   It is unclear from this testimony whether the drug dealers actually suggested robbery or told appellant to “do whatever [he] had to do” which appellant interpreted to include robbery.   However, even if appellant's vague testimony is taken literally, it is too insubstantial to establish that the drug dealers demanded that appellant commit any crime, let alone the robbery of Wendy's.   Indeed, the decision to satisfy his need for capital by robbing the fast food restaurant was appellant's and appellant's alone.   Appellant testified he understood that “it was up to [him] to decide how to get the money.”   Thus, the court's refusal to instruct the jury on the defense of duress was also supported by appellant's failure to satisfy the implied or direct demand requirement.

3. Necessity

Similarly, appellant argues the court erred when it refused to instruct the jury on the defense of necessity.   We conclude this defense was not available to appellant because, most importantly:  1) there were reasonable legal alternatives available, and 2) appellant contributed to the circumstances claimed to give rise to the necessity to commit the crime.

 Necessity, a defense distinct from duress, provides a justification when the situation is “of an emergency nature, threatening physical harm, and lacking an alternative, legal course of action.  [Citation.]   The defense involves a determination that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.  [Citation.]”  (Heath, supra, 207 Cal.App.3d at pp. 900-901, 255 Cal.Rptr. 120.)

 To warrant an instruction on the defense of necessity, appellant was required to present evidence sufficient to establish that he violated the law:  “(1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency.”  (Kearns, supra, 55 Cal.App.4th at p. 1135, 64 Cal.Rptr.2d 654.)

Here, the evidence was insufficient to permit a reasonable jury to find that these conditions were established.   Most significantly, appellant failed to introduce substantial evidence to support the second and sixth elements of necessity.   The evidence showed appellant had a plethora of reasonable legal alternatives to robbing Wendy's.   First, appellant admitted that after his release, he never pursued the option of contacting his aunt to see if he could borrow additional funds.   His aunt testified she maintained a bank account with a balance in the vicinity of $200 to $300, and that she would have given appellant additional funds if she had known his life was in danger.

Appellant had a second option of returning to his aunt's house and warning her to vacate the premises.   Appellant was released a short distance from his aunt's residence.   He could have proceeded to his aunt's house and averted the “drive-by” by relocating his family, rather than committing the robbery.

 Third, appellant could have reported the crime to the police and requested police intervention.  (See, e.g., Kearns, supra, 55 Cal.App.4th at p. 1135, 64 Cal.Rptr.2d 654 [necessity defense unavailable where defendant could have asked the victim to call the police instead of carrying out the robbery].)   Appellant is not excused from contacting the police concerning the threatened “drive-by” because he was dissatisfied with the way police handled the previous shooting incident.   Sergeant Banks's testimony showed that any dissatisfaction harbored by appellant was not objectively reasonable.   The previous shooting incident was not investigated because appellant only sought revocation of his parole and failed to provide the facts necessary to investigate his claims.   Thus, appellant's evidence regarding prior police response to the shooting incident was insufficient to establish that seeking police intervention to avert the threatened “drive-by” would have been futile.

Moreover, we cannot accept appellant's argument that generalized concerns about the ability of the police to protect citizens from drug-related crimes permit this obvious alternative to be spurned in favor of the commission of a crime.   The “reasonable legal alternative” standard is objective and fact specific.   Absent a showing that appellant unsuccessfully sought police intervention in response to this particular threat, appellant's claim of necessity must fail.

To invoke the necessity defense, appellant also bore the burden of presenting sufficient evidence from which a jury reasonably could conclude that he did not substantially contribute to the creation of the emergency.  (People v. Buena Vista Mines, Inc. (1998) 60 Cal.App.4th 1198, 1202, 71 Cal.Rptr.2d 101;  Kearns, supra, 55 Cal.App.4th at p. 1135, 64 Cal.Rptr.2d 654;  People v. Slack (1989) 210 Cal.App.3d 937, 940, 258 Cal.Rptr. 702.)   Here, the evidence established that appellant created the emergency when he purchased illicit drugs on credit, and failed to repay the debt for three to four years.   Appellant was fully aware of the dangers of refusing to satisfy this debt, since four months earlier the same unpaid debt resulted in an attempt on appellant's life.   Yet, despite knowledge that continued refusal to pay the drug-related debt could be life-threatening, appellant failed to devise a lawful plan for repayment.

 While we recognize the public policy 5 furthered by allowing the defense of necessity to be raised in appropriate cases to avoid criminal liability, its invocation is certainly not authorized where it is the culpable conduct of the actor which itself creates or contributes to the atmosphere of necessity.  (See People v. Buena Vista Mines, Inc., supra, 60 Cal.App.4th at p. 1202, 71 Cal.Rptr.2d 101 [necessity defense to criminal charges for violation of water pollution laws not available where defendant substantially contributed to the emergency by storing contaminated water in an inadequately sized user pond].)   Because appellant's own behavior substantially contributed to the emergency, the court properly refused to instruct the jury on the necessity defense.

4. Reasonable Doubt

Appellant claims the trial court erred in instructing the jury on reasonable doubt when it instructed the jury in the language of the new version of CALJIC No. 2.90, which omits the words “and depending on moral evidence” and “to a moral certainty” from the instruction on reasonable doubt.   This claim is meritless.

The revised instruction of CALJIC No. 2.90 comports exactly with the suggestion of our Supreme Court in People v. Freeman (1994) 8 Cal.4th 450, 504, footnote 9, 34 Cal.Rptr.2d 558, 882 P.2d 249 (Freeman ), following criticism of the former version by the federal high court in Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (Victor ), and comports with the statutory mandate as modified to comply in 1995 (Pen.Code, § 1096).   The suggestion in Freeman may be dictum since it was not strictly necessary for resolution of the case.  (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498, 102 Cal.Rptr. 795, 498 P.2d 1043.)   Still, Supreme Court dictum can be highly persuasive (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328, 27 Cal.Rptr.2d 406), and this dictum was specifically crafted for use by trial courts statewide.   The Supreme Court called its proposed changes “permissible” (Freeman, supra, 8 Cal.4th at p. 504, 34 Cal.Rptr.2d 558, 882 P.2d 249), and we deem that pronouncement a binding one (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937).

Appellant's argument that the revised instruction unconstitutionally lowered the burden of proof was recently rejected by Division Five of this appellate district in People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209, 68 Cal.Rptr.2d 619.   We concur in the analysis set forth in People v. Aguilar and join an unbroken line of cases upholding the revised instruction.   (People v. Barillas (1996) 49 Cal.App.4th 1012, 1022, 57 Cal.Rptr.2d 166 [Second District];  People v. Carroll (1996) 47 Cal.App.4th 892, 895-896, 54 Cal.Rptr.2d 868 [Fourth District];  People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816, 54 Cal.Rptr.2d 853 [Sixth District];  People v. Tran (1996) 47 Cal.App.4th 253, 262-263, 54 Cal.Rptr.2d 650 [Sixth District];  People v. Light (1996) 44 Cal.App.4th 879, 884-889, 52 Cal.Rptr.2d 218 [Fifth District];  People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1078, 51 Cal.Rptr.2d 77 [Second District].)

B. Discharge of Juror Number Four

The jury began its deliberations on March 7, 1996.   Later that day, the jury requested clarification of the instructions regarding specific intent which were clarified by the court.   Two hours later, the jury requested further instructions regarding specific intent.   The next morning, the court responded with additional instructions.

Shortly thereafter, the following request was sent bearing the signature of 11 jurors:  “We, the jury in the above entitled cause, request the following:  an alternate or substitute for Juror [No.] 4 [the presiding juror].   That juror is unwilling to evaluate the facts in the case based on the law given.”   The court responded by reinstructing the jury concerning their duty to follow the law and participate in deliberations using the uniform instruction found in CALJIC No. 17.40.6  That afternoon, the court received another request from the jury, asking “ ‘What should the jury do if a member of the group defines specific intent as the’ ․ ‘purpose of committing the alleged crime and the rest of the jury understands specific intent in reference to the action that would predict that [appellant] would return the money to Wendy's?’  ” The request was signed by Juror No. 4(JN4) 7 as presiding juror.

The court responded:

“In answer to your inquiry regarding specific intent, you are instructed as follows:

“There are defenses of justification for committing crimes that pertain to specific intent and public policy.   However, the jury has not been instructed as to such defenses or justifications because, as a matter of law, none of such defenses or justifications apply.   The critical question for the jury to determine on the issue of specific intent is whether at the time of the alleged taking [appellant] had the specific intent to permanently deprive Ms. Wilson of the money.

“When one takes property with the intent to return it the crime of robbery is not proven.   When the evidence proves beyond a reasonable doubt that one takes property of another with the specific intent that the property will not be returned, the specific intent element of robbery is established.

“The jury may properly take into account any or all of the events of the evening leading up to the alleged event in Wendy's in deciding the issue of specific intent.   However, if you find that [appellant] had the specific intent to permanently deprive Ms. Wilson of the money at the instant he took the money, any purpose he may have to use the money to pay a legal or illegal debt in order to avoid threatened bodily harm by his creditors will not alone and by itself negate his specific intent to deprive Ms. Wilson of the money.   Such fact, if you find it to be a fact, may be used with other facts found by the jury in deciding whether under all of the evidence the specific intent has been proven.   But duress alone and by itself is not a defense under the evidence before you.

“In evaluating the evidence concerning specific intent you should consider all of the jury instructions that have been previously given you.”   After giving these instructions, the court instructed the jury to continue its deliberations.

During the next hour, the jury submitted two additional requests.   These requests were signed by a new presiding juror, JN7, and by each individual juror with the exception of JN4. The first request asked “[t]hat the court reporter read the questions asked of [JN4] during the selection process.   All questions that would affirm that the prospective juror would be able to render a guilty verdict based on the facts and law given.   That the law would be used in coming to a decision in this case.”  (Original underlining deleted, italics added.)

The second request asked “[t]hat [JN4] be excused due to her bias.   She has worked in a drug and alcohol rehab[ilitation] facility.   This is [a]ffecting her ability to view the facts and law in this case.   She is unfairly sympathetic to [appellant].”

The court determined these communications “made a sufficient ․ basis for an inquiry of the jury to determine whether misconduct has occurred or whether a juror should be excused for cause.”   The court proceeded to question each juror individually, and provided an opportunity for the jurors to be questioned by counsel for both sides.   The court cautioned each juror to avoid disclosing the thought processes engaged in by the jurors during deliberations.   The court began its inquiry by questioning JN7 regarding the alleged bias of JN4.

JN7 explained he had come to the conclusion that JN4 was biased based on her “continual inability to acknowledge the facts, her creative interpretation of the pages that you supplied in written instruction and follow-up questions and her conversation that demonstrates to all the people below signed that she's unusually sympathetic to someone that has a drug problem.”   He described JN4 as declining to cooperatively participate in the deliberations.   He explained:  “We've asked her to commit to an opinion and to write that opinion on the blackboard in chalk, and she's unwilling to take a stance on her opinion.   She's unwilling to articulate her opinion so that we can attempt to refute it.”

JN7 did not believe JN4 would follow the law.   He said that she “interprets the law differently” from the rest of the jurors.   When she looked at the written instruction, JN4 said “ ‘that's not the way it is, that's not what it says.’  ” She “continually adds a sixth point regarding the supposed drug dealers” to the instruction defining the five elements of robbery.   She was not “willing to follow the instructions of the court regarding the lack of justification or defenses.”

The next morning, the court received a note from JN4 stating:

“Unfortunately I have come to a conclusion which is different from my fellow jurors.   I believe that I have applied the law and all the instructions which the court has given me to the best of my ability.   I am unable and unwilling to endure another day of deliberations like today.   I believe that the jury cannot reach consensus.   The other jurors cannot accept that I have reached another conclusion.   They want only a unanimous verdict.   I am unable to come to the same conclusion as they have.   I therefore ask to be excused immediately.”

After receiving this note, the court questioned JN4 individually.   JN4 denied being influenced by sympathy for the defendant or her background of working in a drug-alcohol rehabilitation program.   She stated that she was able to follow all of the court's instructions.   JN4 told the court that she had been “deliberating in good faith for a day and a half,” but acknowledged that there had been a breakdown in communications.   JN4 felt intimidated and believed the other jurors were applying undue pressure on her during the course of deliberations.   She explained:  “I'm not willing to deal with what went on in there yesterday․   They are not trying to convince me that I am wrong, they are trying to convince me that I'm stupid.”   When asked whether she could continue deliberations, she responded “I can't go back․   Yesterday was too painful.   I'm not going to do that again.”   Again, the court asked “Do you feel that you cannot continue with the deliberations?”   JN4 replied, “I'm unwilling to.”

The prosecution noted that JN4 was “very emotional” and asked her whether it was correct that she was unwilling to return to deliberations.   She responded, “Well, more than being unwilling to deliberate, I am unwilling to subject myself to another seven hours of what I went through yesterday.”

When asked to explain how she was being intimidated during the deliberations, JN4 stated:  “Well, the issue has become that the rest of the jurors believe that I don't understand, that I'm not applying the law.   I don't believe that to be the case.   Sometimes they tell me we don't want to hear what you have to say anymore and [then] say tell us what you have to say.   I'm like this yo-yo.   I'm at their mercy.”

JN4 believed the jury had reached a verdict, but it was not unanimous.   In her opinion, the jury would not benefit from further deliberations.   However, her refusal to return to the jury room was not based upon this belief.   JN4 explained “it's gotten to be a personal issue.   It's not the facts.   If they want to discuss just the facts I'm okay doing that, but they talk among themselves about how [JN4] doesn't know what she's doing.”

At the conclusion of the questioning, the court again inquired whether JN4 was willing to return to the jury room and resume deliberations.   She opined that the others did not want to hear what she had to say.   Later, she stated that she might be willing to engage in further deliberations if there “was some end.”   When pressed, she would not give an affirmative answer to the court's question regarding her willingness to continue deliberations.   Instead, she stated:  “This is difficult -- I can't answer this question.”

 The court continued questioning the other jurors with the participation of counsel.8  The jurors explained that they inferred JN4 was unfairly sympathetic to the appellant based upon her statements and conduct during deliberations.9  Many jurors reported that JN4 was not participating in the deliberations by explaining her position and answering other jurors' questions.10  Several jurors felt that JN4 had prejudged the evidence or developed a “mindset” that precluded honest and open deliberations.11  Most of the jurors believed that JN4 was unwilling to follow the law as set forth in the court's instructions.12

After conducting an extensive inquiry and considering the arguments of the attorneys, the court excused JN4 and replaced her with an alternate.   The court explained:  (1) 11 other members of the jury shared the impression that JN4 was allowing factors, including sympathy, to affect her evaluation of the evidence in this case;  (2) JN4 was not open-minded as evidenced by her statement to JN2 that appellant was innocent before formal deliberations began;  (3) JN4 was not candidly expressing her position, answering the questions of other jurors or explaining how she arrived at her decision;  and (4) JN4 was adding elements to those set forth in the jury instructions.13  Further, the court concluded that JN4 “is unwilling to continue in jury deliberations such as those of yesterday where she once again is going to be asked to do something that is perfectly reasonable and that is to explain her position so the other jurors might be able to understand it, be able to discuss it, and be able to identify its strengths or weaknesses.   That's what the jury deliberations are all about․  [B]ased on answers by the jurors, I've heard [JN4] is not agreeable to participate in this most important, ․ part of jury deliberation.  [¶] And, therefore, pursuant to Penal Code section [1089 JN4] is guilty of misconduct [that] prevents her from serving.   Good cause otherwise exists to excuse [JN4].”

After the court's ruling, defense counsel made a motion for mistrial, arguing “basically what the court is saying [is] the only way she can be perfectly reasonable, to use the court's words, would be to change her vote and vote guilty.”   The court denied the motion for mistrial.

1. Standard of Review

 Section 1089 permits a juror to be discharged and replaced with an alternate “[i]f at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found unable to perform his duty, ․ ” Under California law, “[w]e review for abuse of discretion the trial court's determination to discharge a juror and order an alternate to serve.  [Citation.]   If there is any substantial evidence supporting the trial court's ruling, we will uphold it.  [Citation.]”  (People v. Marshall (1996) 13 Cal.4th 799, 843, 55 Cal.Rptr.2d 347, 919 P.2d 1280.)   However, a juror's inability to perform as a juror must “ ‘ “appear in the record as a demonstrable reality.”  ’ [Citation.]”  (Ibid.) “Grounds for investigation or discharge of a juror may be established by his statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.  [Citations.]”  (People v. Keenan (1988) 46 Cal.3d 478, 532, 250 Cal.Rptr. 550, 758 P.2d 1081.)

Appellant contends that good cause did not support JN4's dismissal.  (§ 1089.)   Alternatively, appellant claims removing the lone juror holding out for acquittal violated his right to a fair and impartial jury under the Sixth Amendment of the United States Constitution.   We consider each of these contentions in turn.

2. Refusal to Deliberate

 Refusal to participate in deliberations is a failure of the juror to perform his or her duty and constitutes good cause for removal.   (People v. Thomas (1994) 26 Cal.App.4th 1328, 1333, 32 Cal.Rptr.2d 177;  see also CALJIC No. 1740.)   Our Supreme Court has emphasized the importance of each juror's participation in deliberations, explaining “[d]eliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member.   Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint.”   (People v. Collins (1976) 17 Cal.3d 687, 693, 131 Cal.Rptr. 782, 552 P.2d 742 [error to substitute an alternate juror without directing the jury to commence deliberations anew.])

Here, the issue had two components.   First, the trial judge was confronted with allegations that JN4 had committed juror misconduct by refusing to participate in a meaningful way in the deliberations which had already taken place.   Second, during the course of its investigation, JN4 indicated that she was “unable and unwilling to endure” continued deliberations.   We hold the trial court did not abuse its discretion in concluding that the aggregate of JN4's conduct during deliberations, and her unwillingness to continue deliberating, constituted good cause to justify her removal.

The trial court's conclusion that JN4 failed to approach the deliberations with an open mind, candidly express her position, answer the questions of other jurors or explain how she arrived at her decision was supported by the testimony of JN1, JN2, JN3, JN7,14 JN8, and JN12.

The trial court was extremely troubled by an apparent sotto voce conversation between JN2 and JN4, indicating that JN4 had already made up her mind to acquit appellant before the jury formally commenced their deliberations.   JN2 testified that as they walked into the jury room to begin deliberating JN4 wanted to know JN2's verdict.   When JN2 replied that she could not answer that question before reading her notes and thinking about the case, JN4 attempted to commit her to reaching a decision within a timeframe of five or ten minutes.   Before any discussion or debate about the evidence occurred, JN4 told JN2 that she believed appellant was not guilty.15

JN1 testified that in the ensuing deliberations JN4 was “unwilling to show [the jury] her point of view.   There's no information on that at all.   She is totally unwilling to show us where she is coming from.   She won't do it.”   Later in the interview, JN1 repeated his observation concerning JN4's uncooperative behavior:

“Q [PROSECUTOR]:  Has it gotten to the point now where she refuses to deliberate?

“A [JN1]:  Yes;  she's reading a book.

“Q:  How long has she been reading the book?

“A:  I noticed today she was reading a book.16  Yesterday basically she didn't speak until we talked to her.   She had nothing to say basically unless we asked questions, which we did, but she is not coming out and trying to prove herself to us.   She is saying this is the way I feel and that's it.   We are trying to accommodate the fairness.   We are trying to work it out, but I really get personally that she could care less what we think and that's that.”

This view was shared by JN2:

“Q [BY THE COURT]:  Has [JN4] participated in the debate about the evidence in the jury room?

“A [JN2]:  No. In my opinion, no.   Can I go on?

“Q:  Yes.

“A:  Yesterday when we were-we've been going at this for a long time and I tried to get her to talk to me.   I said talk to me and I'll tell you how I feel and we'll discuss the facts.   She absolutely refused to.”   JN2 testified JN4 justified her refusal to explain how she arrived at her position, claiming that she “already knew ․ the right thing to do.”

JN3 contributed the following:

“Q [BY THE COURT]:  Let me inquire of you this, [JN3]. Did [JN4] say anything immediately after the jury retired to the jury room that suggested to you that she had already made up her mind before the jury deliberations began?

“A [JN3]:  She didn't really want to listen to what we had to say, like she'd already made up her mind and that was final.   She has some kind of a mental block that she don't want to listen to what we have to say.   That she is basing this on her own feelings and she's not go[ing to] change her mind.

.    .    .    .    .

“Q:  Did [JN4] participate in the discussions, the debate about the evidence?

“A:  A little bit, but she didn't really want to participate willingly.   She didn't want-

“Q:  Did she at any time refuse to answer any questions?

“A:  Oh, yes, a lot of times.

.    .    .    .    .

“Q [PROSECUTOR]:  Did she ignore questions from other jurors?

“A:  Yes.

“Q:  About how many times?

“A:  Quite a few times.”

JN3 explained that JN4 “just wouldn't participate in the discussion or listening to what we had to say to her.”

JN5 testified that JN4 did not explain her positions clearly to the other jurors.   He recalled “[w]e tried to get her to open up and tell us why she thought the way she did but she would not openly state the reasons--her reasons for it or her basis for it.”

JN8 testified:  “[A]t one point we were asking her where is she coming from, trying [sic ] to convince us otherwise, and she didn't.   She wouldn't even get up there and try to explain herself to us.”   JN8 stated that several times JN4 would not respond to requests to explain her position, because “[s]he felt she didn't need to.”

JN12 complained “we keep asking her to explain her feelings and her, you know, thinking and why she is saying some of the things, and she never will explain it to us.”   Although conflicting testimony was also presented on the extent of JN4's participation during deliberations, the above-described testimony is more than sufficient to support the conclusions of the trial court under our deferential standard of review.

Appellant contends, however, that even if we uphold the trial court's conclusions, they are insufficient to constitute good cause for removal.   Appellant argues that dismissing a juror for anything less than a complete refusal to participate in jury deliberations would impose a “coercive correctness” on jury deliberations.   We need not decide if the level of JN4's participation itself constituted grounds for dismissal because the trial court also based its decision on JN4's unwillingness to deliberate further.   The record amply supports dismissal on the basis of this additional finding alone.   Moreover, when the record supporting this latter finding is joined with that chronicling JN4's reticence in deliberations, if not a complete abjuration of her duty to deliberate, the decision to dismiss JN4 is even more compelling.

In her note requesting dismissal, JN4 stated “I am unable and unwilling to endure another day of deliberations like today.”   When questioned by the court and counsel, JN4 repeated her refusal to continue deliberations on four separate occasions, stating:  (1) “I'm not willing to deal with what went on in there yesterday;”  (2) “I can't go back․   Yesterday was too painful.   I'm not going to do that again;”  (3) “I'm unwilling to [continue deliberating];”  and (4) “I am unwilling to subject myself to another seven hours of what I went through yesterday.”   While JN4 hypothesized that she might be willing to continue deliberating “if I thought there was some end,” she never affirmatively committed herself to returning to the deliberations.

 Therefore, regardless of whether JN4's conduct during deliberations fell short of an outright refusal to deliberate, the court was certainly within its discretion to dismiss JN4 once she adamantly refused to deliberate further.   JN4 was not unilaterally entitled to terminate all deliberations because she believed further deliberations were unnecessary or decided that the process of deliberating had become too “personal” or “painful.”

Although a refusal to continue deliberations might be warranted where a juror is being mistreated or coerced by the other jurors, the trial court rejected JN4's claims of intimidation.   Instead, the court expressly concluded that her fellow jurors had not “at any time attempted to force or be aggressive with [JN4] but rather to try to get [JN4] to explain her position in a way that the other jurors might be able to understand and then intelligently analyze and discuss.”   Substantial evidence to support this finding can be found in the testimony of several jurors that JN4 was questioned in a respectful manner out of a sincere and open-minded desire to consider her viewpoint.

Under the circumstances here, JN4's conduct during deliberations coupled with her refusal to participate in further deliberations rendered her unable to perform her duties as a juror.   This inability to perform as a juror appears in the record as a “ ‘ “demonstrable reality.”  ’ ” (People v. Marshall, supra, 13 Cal.4th at p. 843, 55 Cal.Rptr.2d 347, 919 P.2d 1280.)   Thus, the trial court's decision was not an abuse of discretion.17

The Second District Court of Appeal recently affirmed the discharge of a juror for refusal to deliberate on a similar record of uncooperative and closed-minded behavior during deliberations.  (People v. Thomas, supra, 26 Cal.App.4th at pp. 1332-1333, 32 Cal.Rptr.2d 177.)   There, “Juror Bailey,” a juror the defense characterized as the lone holdout for acquittal, was dismissed during deliberations and replaced with an alternate.  (Ibid.) In affirming the subsequent conviction, the court summarized Juror Bailey's participation in deliberations up to the point of his dismissal:  “In this case, the record indicates that Juror Bailey failed to perform his duty to deliberate before reaching his decision.   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.   As the [trial] court concluded, Juror Bailey ‘made up his mind before he went in there.’   The refusal to deliberate amounted to a failure of the juror to perform his duty (see CALJIC No. 17.40) and constituted good cause for removal from the jury.  (See People v. Johnson [1993] 6 Cal.4th [1,] 21, 23 Cal.Rptr.2d 593, 859 P.2d 673.).

.    .    .    .    .

“The other jurors' observations and Juror Bailey's dialogue with the court further indicated that he was not forthcoming with answers to jurors' discussion questions and did not cooperate with the other jurors.   To the extent that Juror Bailey could be viewed as merely not paying attention to his fellow jurors and to the [trial] court, inattentiveness is also grounds for dismissal of a juror (People v. Johnson, supra, 6 Cal.4th at pp. 21-22, 23 Cal.Rptr.2d 593, 859 P.2d 673), and Juror Bailey was properly dismissed.”   (People v. Thomas, supra, 26 Cal.App.4th at p. 1333, 32 Cal.Rptr.2d 177.)

We, too, have no hesitancy to affirm the discretionary discharge of JN4. Not only did she and juror Bailey share a similar reluctance to participate in the essential give and take of deliberations, but JN4's conduct was more even egregious because she was unwilling to rejoin the jurors in the jury room.

To be sure, some jurors expressed the view that JN4 was participating, or at least endeavoring to participate, in deliberations.   Having reviewed the record on this point numerous times, we readily concede that different conclusions can be reached concerning JN4's level of participation in deliberations accomplished before the court's investigation began.   Thus, we do not fault our dissenting colleague for arriving at a different conclusion on this point than do we.   Nevertheless, we expect that the dissent would similarly abide our alternate conclusion, and that of the trial court, that other portions of the record attest that JN4 demonstrated a manifest unwillingness to participate in the give and take of deliberations vital to the proper functioning of the role of the jury.

Like many records we regularly review for error, the testimony of the jurors is in conflict.   It merely serves to illustrate again the imperative of vesting discretion in trial courts to weigh these statements when wielding the statutory prerogative of dismissal in dealing with alleged juror misconduct.   While the words spoken during the juror interviews are available to us, the conviction with which they were uttered has been experienced only by the trial court.   We emphasize that the process employed by the court in its investigation was nearly exhaustive, arguably treading incorrectly in the area of juror thought processes.   At a minimum, one cannot fault the record as being factually parsimonious.   In light of the trial court's conclusions, which are fully supported by the record, we are content that the court made a determination and chose a course of action within the realm of its discretion, and we are unwilling to substitute the proclivities of any member of this panel for that judgment.

3. Sixth Amendment Considerations

 We also reject appellant's alternative argument that the dismissal of JN4 violated his Sixth Amendment right to a fair and impartial jury.   At the outset, we note that section 1089 has been repeatedly upheld as facially valid under the Sixth Amendment.  (Miller v. Stagner (9th Cir.1985) 757 F.2d 988, 995, mod.  768 F.2d 1090;  Perez v. Marshall (9th Cir.1997) 119 F.3d 1422, 1426 (Perez ).)   Thus, the mere fact that section 1089 permits a juror to be discharged for good cause during the course of jury deliberations does not deprive the defendant of his or her Sixth Amendment rights.  (Miller v. Stagner, supra, 757 F.2d at p. 995;  Henderson v. Lane (7th Cir.1980) 613 F.2d 175, 177.)   The only remaining question is whether the court's application of section 1089 violated the Sixth Amendment under the circumstances of this case.  (Perez, supra, 119 F.3d at pp. 1426-1428.)

In support of his Sixth Amendment claim, appellant relies mainly on U.S. v. Hernandez (2nd Cir.1988) 862 F.2d 17 (Hernandez ) and U.S. v. Brown (D.C.Cir.1987) 823 F.2d 591 (Brown ).   Both cases are distinguishable from the present case.

In Hernandez, the court found the removal of the lone juror holding out for acquittal violated the defendant's Sixth Amendment rights where the trial judge waited two days to see whether the jury would deadlock before discharging the juror on the basis of mental incompetence.  (Hernandez, supra, 862 F.2d at pp. 20-22.)   After removing the juror, the district court “praised the eleven [remaining jurors] lavishly for their efforts to persuade [the holdout juror] to vote to convict․”  (Id. at p. 24.)   The Second Circuit Court of Appeals held “That a juror may not be removed because he or she disagrees with the other jurors as to the merits of the case requires no citation.   Moreover, removal of the sole holdout for acquittal is an issue at the heart of the trial process and must be meticulously scrutinized.”  (Id. at p. 23.)   The appellate court reversed for three interrelated reasons:  (1) the record indicated that the juror's dismissal may have been motivated by the district court's desire to avoid a mistrial;  (2) the removal was improperly delayed;  and (3) the statements of the district court prevented the remaining 11 jurors from resuming deliberations with an open mind.  (Id. at pp. 23-24.)

Here, the record contains no indication that the court removed JN4 because of the court's desire to avoid a mistrial.   The court did not delay its investigation to see if the jury deadlocked, or indicate in any manner that its judgment was influenced by the desire for a unanimous guilty verdict.   Unlike Hernandez, the court did not direct prejudicial or coercive remarks to the newly reconstituted jury.

To the contrary, the trial court undertook considerable and elaborate steps to conduct an inquiry into the allegations of juror misconduct.   After receiving the first note accusing JN4 of not deliberating properly, the court simply instructed the entire jury regarding their duty to follow the law and participate in deliberations.   When the jury asked for advice regarding “a member of the group” who continued to define specific intent as appellant's purpose for committing the crime, the court responded with additional instructions clarifying the definition of specific intent.   It was only after difficulties with JN4 continued to impede the deliberations that the court commenced the formal investigation that led to her discharge.

 During the course of its investigation, the court did not direct coercive or prejudicial remarks to the jury.   The court interviewed each juror separately and instructed the jurors not to discuss the misconduct investigation amongst themselves.   Alternate jurors were not involved in the investigation.   Moreover, the court made a conscientious attempt to avoid delving into the substance of the jury's deliberations by admonishing each juror not to reveal their thought processes.   Objections to overly intrusive questions were sustained.18

After the court discharged JN4 and replaced her with an alternate, it properly instructed the newly reconstituted jury that “[O]ne of your number has been excused for legal cause and replaced with an alternate juror.   You must not consider this fact for any purpose.   The People and the defendant have the right to a verdict reached only after full participation of the 12 jurors who return the verdict.  [¶] This right may be assured only if you begin your deliberations again from the beginning.   You go right back to the first moment of your deliberations.   You must, therefore, set aside and disregard all past deliberations and begin deliberating anew.   This means that each remaining original juror must set aside and disregard the earlier deliberations as if they had not taken place.  [¶] You shall now retire to begin anew your deliberations in accordance with all the instructions previously given.”   Although the newly reconstituted jury only deliberated for 15 minutes before arriving at a verdict, the brevity of their deliberations is not disturbing in light of the simplicity of this case.19  By his own testimony, appellant admitted that he committed the robbery and had no intention of returning the stolen money.   The jury was instructed not to consider justifications for committing the crime because they did not apply as a matter of law.

In Brown, supra, 823 F.2d at p. 594, a juror sent a note to the court stating that he was no longer able to discharge his duties as a member of the jury.   The court briefly questioned the juror concerning his reasons, and the juror indicated that he had difficulties with “the way [the RICO statute is] written and the way the evidence has been presented.”  (Id. at pp. 594-595.)   Although the reasons underlying the juror's request for dismissal were not entirely clear, the court decided further questioning would intrude on the secrecy of the jury's deliberations.  (Id. at p. 595.)

The parties disagreed concerning the proper conclusion to draw from the comments of the juror.   The prosecutor claimed dismissal was proper because the juror expressed an unwillingness to follow the court's instructions on the law.  (Brown, supra, 823 F.2d at p. 595.)   Defense counsel argued the juror's concern was simply with the government's failure of proof on the RICO counts.   The court agreed with the prosecution and dismissed the juror for refusing to follow the law.  (Id. at pp. 595-596.)

The District of Columbia Circuit concluded the dismissal violated the defendant's Sixth Amendment rights since the record indicated a “substantial possibility that [the juror] requested to be discharged because he believed that the evidence offered at trial was inadequate to support a conviction.”   (Brown, supra, 823 F.2d at p. 596.)   The court reasoned “when a request for dismissal stems from the juror's view of the sufficiency of the evidence that the government offered at trial, a judge may not discharge the juror:  the judge must either declare a mistrial or send the juror back to deliberations with instructions that the jury continue to attempt to reach agreement.”   (Ibid.) The court went on to “confront the problem that the reasons underlying a request for a dismissal will often be unclear.”  (Ibid.) Noting that “a court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations,” the court concluded that “if the record evidence discloses any possibility that the request to discharge stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request.  [Citations.]”  (Ibid.)

Brown is also distinguishable on its facts.   Here, the trial court did not suffer from a lack of clarity concerning JN4's reasons for refusing to continue the deliberative process.   The court based its decision on the results of an extensive inquiry into JN4's ability to perform her functions as a juror.   Unlike the discharged juror in Brown, JN4 did not testify that her views on the evidence prevented her from continuing to deliberate.   Instead, JN4's comments reveal a demonstrable unwillingness to continue deliberations.   Thus, the factual underpinning for the court's rationale in Brown is markedly and significantly distinguishable.

After briefing in the instant case was completed, the Second Circuit Court of Appeals decided U.S. v. Thomas (1997) 116 F.3d 606 (Thomas ), in which it reversed the trial court's decision to discharge a juror for willfully refusing to follow the law.  (Id. at pp. 618-623.)   The Second Circuit adopted the Brown standard “as an appropriate limitation on a juror's dismissal in any case where the juror allegedly refuses to follow the law,” and concluded the juror should not have been dismissed because his statements demonstrated a possibility that he was merely dissatisfied with the prosecution's evidence.  (Id. at p. 622, italics omitted.)   The court acknowledged that its decision to follow Brown might result in permitting jurors to “engage in irresponsible activity that will remain outside the court's powers to investigate or correct.”  (Ibid.) Nevertheless, the court concluded that the need to protect the secrecy of jury deliberations outweighed the need to prevent jury nullification.  (Ibid.) Despite an extensive discussion of the policy considerations underlying its adoption of the Brown standard, the court did not state that the Brown standard was constitutionally required.   Reference to the Sixth Amendment is noticeably absent from the Thomas opinion.

Like Hernandez and Brown, Thomas is factually distinguishable from this case.   Here, the court was faced with a juror who demonstrably refused to return to deliberations because she experienced the process as “personal” and “painful” and beyond her ability to “endure.”   The record does not indicate that JN4 was refusing to return to deliberations because she entertained doubts as to the sufficiency of the prosecution's evidence.

Therefore, we reject these cases as unpersuasive.  (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 830, 171 Cal.Rptr. 604, 623 P.2d 165 [state court not required to follow federal lower court precedents which it finds unpersuasive].)   Instead, we find more analogous the recent Ninth Circuit Court of Appeals decision in Perez, supra, (9th Cir.1997) 119 F.3d 1422.

In Perez, the court dismissed J.R., the lone holdout juror, on the ground that she was emotionally unable to continue deliberations.  (119 F.3d at p. 1423.)   During a series of in camera hearings, J.R. made clear that she was the only juror who entertained a reasonable doubt as the defendant's guilt and tearfully informed the judge that she no longer wanted to continue on the jury.  (Id. at pp. 1424-1425.)   In her initial request for dismissal, she explained that the jurors were angry at each other, they were all “ ‘stressing out,’ ” and that one of the jurors yelled at her.  (Id. at p. 1424.)   After the judge directed her to continue deliberating, the deliberations again broke down because of difficulties involving J.R. (Ibid.) J.R. explained that one of the jurors got mad at her because she agreed to join the other 11 jurors in a verdict, but then changed her mind.  (Id. at pp. 1424-1425.)   She indicated that she was not emotionally able to continue deliberations.   (Ibid.) The presiding juror confirmed that the jurors had convinced J.R. to join a verdict on one count, but that J.R. subsequently changed her mind.  (Id. at p. 1425.)   The presiding juror went on to state that J.R. was “ ‘basically in pieces' ” and you just “ ‘can't get somebody to be rational when they're in that state.’  ” (Ibid.) The next day, J.R. again informed the court that she did not want to continue on the jury.  (Ibid.) If forced to continue, she predicted “ ‘it would be a very emotional experience ․ like it was yesterday with tears and everything else.’  ” (Ibid.) The court dismissed J.R. for cause concluding from her statements and her demeanor that she was “emotionally out of control.”  (Ibid.) The court denied defense counsel's motion for a mistrial and substituted an alternate juror in J.R.'s place.  (Ibid.)

On review from a district court's denial of habeas corpus relief, a majority of the Ninth Circuit Court of Appeals panel concluded that J.R.'s dismissal did not violate the defendant's Sixth Amendment rights.  (Perez, supra, 119 F.3d at pp. 1426-1428.)   The majority noted that “[a]ppellate courts have upheld the dismissal and replacement of jurors whose physical or mental condition prevented them from effectively participating in deliberations.  [Citations.]”  (Id. at p. 1427.)   The majority acknowledged that J.R.'s “infirmity as a juror could have been triggered or exacerbated by her disagreement with the other jurors as to [the defendant's] guilt.”   Nevertheless, the court concluded that the trial judge “properly removed [J.R.] from the jury because [J.R.'s] emotional instability prevented her from continuing to perform the essential functions of a juror in the same way that a hearing impairment, a mental illness, or a poor health condition would have.”   (Ibid.)

Here, as in Perez, JN4's infirmity as a juror “could have been triggered or exacerbated” by her minority position.  (Perez, supra, 119 F.3d at p. 1427.)   However, like the Perez majority, her dismissal was constitutionally permissible because it was directly caused by her inability or unwillingness to “endure” further deliberations.  (Ibid.)

Furthermore, we are not persuaded that the Sixth Amendment requires us to adopt the Brown standard prohibiting dismissal based upon a mere “possibility” that the request for discharge stems from the juror's views on the sufficiency of the prosecution's evidence rather than the good cause assigned for the dismissal by the trial court.   There is no support for such a restrictive standard in California law.   For example, in People v. Feagin (1995) 34 Cal.App.4th 1427, 1437, 40 Cal.Rptr.2d 918, the Second District Court of Appeal upheld the trial court's dismissal of juror K.P. for prejudging the credibility of the police officers who testified at trial and for personal bias.   It is noteworthy that in the course of the trial court's inquiry into possible misconduct, K.P. sent the trial judge a note expressing her “concern [ ] with the honesty of all the witnesses” and her belief that the other 11 jurors were “doing everything possible to assume guilt without giving the defendants the benefit of the doubt.”  (Id. at p. 1435, fn. 3, 40 Cal.Rptr.2d 918.) Despite the “possibility” that the request for K.P.'s discharge stemmed from her concern that the prosecution's witnesses were not credible or that the prosecution had not established guilt beyond a reasonable doubt, the Court of Appeal held the dismissal was not an abuse of discretion.   (Id. at p. 1437, 40 Cal.Rptr.2d 918.)

Moreover, the Brown and Thomas courts' suggestion that the need to preserve the secrecy of jury deliberations requires an investigation of misconduct to cease once “any possibility” is raised that the request for dismissal is linked to the juror's dissatisfaction with the evidence conflicts with the trial court's “duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged․”  (People v. Burgener (1986) 41 Cal.3d 505, 519-520, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Our Supreme Court has held that “failure to make this inquiry must be regarded as error.  [Citation.]”  (Ibid.)

We also decline appellant's invitation to adopt the Hernandez rule requiring the dismissal of holdout jurors to be examined with “meticulous” scrutiny.  (Hernandez, supra, 862 F.2d at p. 24;  see also Thomas, supra, 116 F.3d at pp. 622, 624-625.)   The notion that the trial court's discretion to remove a juror varies according to whether the juror is holding out for acquittal has been expressly rejected by the Ninth and Fifth Circuit Courts of Appeal.  (U.S. v. Leahy (5th Cir.1996) 82 F.3d 624, 629, fn.   4 [“Evidence that a juror was holding out, ․ does not alter the trial court's discretion in removing the juror.  [Citation.]”];  U.S. v. Huntress (5th.   Cir.1992) 956 F.2d 1309, 1313 [status as a holdout juror did not “raise[ ] a red flag”];  Perez, supra, (9th Cir.1997) 119 F.3d at p. 1427 [same].)  California authority accords the same deference to the trial court's discretionary decision to dismiss a juror regardless of whether the juror was holding out for acquittal.  (See, e.g., People v. Roberts (1992) 2 Cal.4th 271, 324-325, 6 Cal.Rptr.2d 276, 826 P.2d 274 [employing deferential standard of review where defendant submits posttrial proof of dismissed juror's holdout status on appeal];  People v. Feagin, supra, 34 Cal.App.4th at p. 1437, 40 Cal.Rptr.2d 918 [employing deferential standard of review where trial judge aware of juror's holdout status prior to dismissal];  People v. Thomas, supra, 26 Cal.App.4th at p. 1333, 32 Cal.Rptr.2d 177 [employing deferential standard of review to dismissal of juror despite defendant's claim that juror was the sole holdout for acquittal].)

We do not agree that restrictions on the discretion of the trial court are necessary to prevent a holdout juror from being dismissed for disagreeing with the other jurors regarding the merits of the case.   We are confident in the ability of our trial courts to analyze requests for dismissal involving holdout jurors in a neutral manner without regard to whether dismissal would hasten a verdict or avoid a mistrial.   The trial court is in the best position to observe the appearance and demeanor of the jurors in order to conclude whether a request for dismissal is legitimately based on good cause.   (People v. Beeler (1995) 9 Cal.4th 953, 989, 39 Cal.Rptr.2d 607, 891 P.2d 153.)

While we disagree that the standards evolving from Brown, Thomas, and Hernandez are constitutionally mandated, we fully understand there are exigencies imposed by the peculiarities of federal criminal procedure which may have motivated these federal courts to embrace them.   Unlike California criminal trial procedure, all federal criminal trial alternate jurors are discharged upon submission of the case to the 12 deliberating members of the jury.  (Fed. Rules Crim.Proc., rule 24(c), 18 U.S.C.) Should a federal trial judge be faced with the need to replace a deliberating juror for any reason, there are no alternate jurors remaining available to meet this potentiality.

Before 1983, if discharge of a deliberating juror was required, be it for sickness, hardship, family emergency, or misconduct, a federal trial court was bound to declare a mistrial unless the parties stipulated in writing that the remaining 11 jurors could render a verdict.  (Crim. Proc., former rule 23(b), 18 U.S.C.) 20 This rule was amended in 1983, and now provides:  “Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.”  (Fed. Rules Crim.Proc. rule 23(b), 18 U.S.C.)

The import of this procedural change is that in exercising its discretion in removing a deliberating federal juror, the court necessarily vests decisionmaking in a panel of less than 12 jurors, even over the defendant's objection.   This allows the case to proceed to conviction 21 without the prosecution having satisfied its burden of having convinced 12 jurors of the defendant's guilt beyond a reasonable doubt.   While Brown, Thomas and Hernandez do not expressly rest their analyses on this distinctive procedural subtlety, the palpable concern for having cases decided where the prosecutor has failed to convince 12 jurors of the defendant's guilt, even if not constitutionally infirm,22 provides at least a facial justification for requiring a more evincing showing upon discharge of the twelfth juror in federal jurisdictions than is demanded of California state trial courts.

Accordingly, we reject the reasoning of Brown, Thomas and Hernandez in favor of the evenhanded analysis set forth by the Fifth and Ninth Circuit Courts of Appeal and California precedent.  (See U.S. v. Leahy, supra, 82 F.3d at pp. 629-630;  U.S. v. Huntress, supra, 956 F.2d at pp. 1312-1313;  Perez, supra, 119 F.3d at pp. 1427-1428.)

Once we conclude that the trial court's awareness of JN4's holdout status did not invalidate its decision to excuse her from jury service per se (Perez, supra, 119 F.3d at p. 1427), there is little factual basis for appellant's Sixth Amendment claim.   There is no indication that the court dismissed JN4 in an attempt to “ ‘load’ ” the jury with jurors favoring conviction.  (See People v. Hamilton (1963) 60 Cal.2d 105, 128, 32 Cal.Rptr. 4, 383 P.2d 412 disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d 815, 866, 277 Cal.Rptr. 122, 802 P.2d 906.)   Indeed, we have chronicled the prodigious efforts by the trial court to preserve the original jury panel.  (See Perez, supra, 119 F.3d at pp. 1427-1428.)   Accordingly, we reject appellant's Sixth Amendment challenge and affirm the trial court's decision to discharge JN4.

C. Sentencing

1. Imposition of Additional Ten Year Term Under Enhancement Allegations

Appellant contends the court erred when it sentenced him to a 10-year term under the prior serious felony enhancement allegations (§ 667, subd. (a)(1)) in addition to the 25 years to life imprisonment imposed under the “Three Strikes” law.  (§ 667, subd. (e)(2)(A)(ii).)   He argues that section 667, subdivision (e)(2)(A) “stands on its own as an independent sentencing scheme” prohibiting additional sentencing under the enhancement allegations.   Appellant's claim was recently rejected by our Supreme Court in People v. Dotson (1997) 16 Cal.4th 547, 66 Cal.Rptr.2d 423, 941 P.2d 56 (Dotson ).   Accordingly, we follow Dotson and affirm the trial court.

2. Cruel and Unusual Punishment

 We proceed to appellant's claim that his sentence of 35 years to life imprisonment violates the federal and state constitutional prohibitions against cruel and unusual punishment.   Under the federal constitution, the issue is whether the sentence is “grossly disproportionate” to the crime.   (Harmelin v. Michigan (1991) 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836 (opn. of Kennedy, J.).)   Under the state constitution, the issue is whether the sentence “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921, fn. omitted (Lynch ).)

The essence of appellant's argument is that a proportionality review must ignore a defendant's criminal history and look only to the current offense to determine whether the sentence is cruel and unusual.   In Lynch the court proscribed disproportionality of a sentence “to the crime for which it is inflicted.”  (Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   However, appellant takes too narrow a view of his offense.   Under the California law of robbery, the Three Strikes law, and the sentence enhancement statutes, the crimes appellant committed were not simply robberies, but robberies by a recidivist.   Our review for disproportionality of the sentence includes not only his current crimes, but also his recidivist behavior.  (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136, 46 Cal.Rptr.2d 351.)

 Thus, we consider whether a sentence of 35 years to life is disproportionate to this recidivist offense.   We conclude it is not.   The jury convicted appellant of second degree robbery.   Appellant was on parole at the time the offense occurred.   To accomplish the robbery, appellant wrapped his hand in cloth and pointed it at the cashier.   This simulation of a gun increased the danger his unlawful conduct posed by exposing the patrons of this crowded restaurant to the risk of defensive fire.

Moreover, appellant has a long history of criminal conduct.   He was first placed on probation at the age of 17 for possession of cocaine base for sale.  (Health and Saf.Code, § 11351.5.)   He was on probation with the juvenile court at the time of his first conviction for robbery.  (§ 211) The victim of this earlier robbery alleged that appellant used a revolver in the commission of this crime.   Appellant admitted the robbery, but claimed the gun was a toy.   Before satisfactorily completing parole for this crime, appellant again was convicted of another robbery.   The victim was a taxicab driver.   The victim claimed appellant hailed the cab, directed him to a remote area, and robbed him using a sawed-off rifle.   Appellant was apprehended as he fled from the scene, and a duffel bag containing a sawed-off rifle was found in his flight path.   Appellant admitted committing the robbery.   Appellant was also implicated in three other robberies for which he was charged.   Appellant pleaded no contest to one count of first degree robbery.

In light of appellant's current offense, his inability to complete parole without committing additional crimes, and his extensive and continued criminal conduct, his sentence of 35 years to life imprisonment does not shock the conscience or violate notions of human dignity.  (People v. Ayon (1996) 46 Cal.App.4th 385, 399-400, 53 Cal.Rptr.2d 853.)   Nor is appellant's punishment disproportionate to the numerous violent offenses he committed.   Rather, application of the Three Strikes law to appellant “results from the need to deter offenders, like him, who repeatedly commit such crimes and to segregate them from the rest of society.   This does not constitute cruel or unusual punishment.”  (Id. at p. 401, 53 Cal.Rptr.2d 853.)

IV.

Disposition

The judgment of the trial court is affirmed.

Unwilling to accept their inability to reach a unanimous verdict of guilt, eleven members of the jury asked the court to remove the sole holdout for acquittal, claiming she was “unfairly sympathetic to the defendant.”   Instead of either declaring a mistrial, as requested by counsel, or admonishing the jury to continue deliberating and attempt to resolve its differences, the court undertook an egregiously intrusive inquiry into the substance of the jury's deliberations and the thought processes of individual jurors, found the holdout juror guilty of misconduct and removed her.   Unsurprisingly, the newly constituted jury returned a guilty verdict fifteen minutes later.

Fairly examined in its entirety, the record does not show misconduct on the part of JN4 or that she was unwilling to deliberate, as the majority labors so mightily to show.   Her dismissal was not just an abuse of discretion but violated rights arising under the United States Constitution.

As federal courts have repeatedly explained, the mere “possibility” a juror was discharged because he or she has doubts about the sufficiency of the government's evidence threatens rights arising under the Sixth Amendment and requires the most rigorous judicial scrutiny.  (United States v. Brown (D.C.Cir.1987) 823 F.2d 591, 596;  United States v. Hernandez (2d Cir.1988) 862 F.2d 17, 22;  United States v. Thomas (2d Cir.1997) 116 F.3d 606, 622.)   The conduct of the trial judge in this case does not survive such scrutiny.   As is readily apparent from the record, there is far more here than a mere possibility JN4 was removed due to her view of the evidence.   The trial court's inquiry, though improper, shows unmistakably that the removal of JN4 resulted from a dispute between her and other jurors relating to the defendant's credibility and whether he possessed the requisite intent.

I.

The Facts

The majority's elaborate effort to show that JN4's removal was unrelated to her view of the evidence is based on highly selective quotes from the record.   An even-handed analysis of the entire voir dire provides little support for that view.

Like the trial court, the majority claims discharge of the juror was warranted by five “factors.”   None stands up to scrutiny.

The first reason given for discharging JN4 was that she allowed certain improper “factors,” “which include sympathy,” to affect her evaluation of the evidence.   The trial judge believed that, as claimed in the last note received from the jury, JN4 was “biased” because she was “unfairly sympathetic to the defendant.”

The eleven other jurors were each asked, “Was there something said by [JN4] that indicated she was unfairly sympathetic to the defendant?”   Five of jurors (JN1, JN5, JN8, JN9, and JN12) flatly denied ever hearing such a statement.   As JN9 stated, “I don't believe that she held a bias.   I know that she did work with drug and alcohol patients, I believe, [but] I don't believe she had a bias.”   Another juror agreed JN4 had said nothing showing bias but thought “you can see it in her face.”   Those remaining jurors who did claim JN4 made statements indicating she was “unfairly biased” pointed to her expressed view that the testimony of drug addicts was not credible, that defendant's testimony was believable, and, most of all, that defendant lacked the necessary specific intent.   For example, JN2 thought JN4 concluded that defendant acted without intent because she felt he figuratively “had a gun to his head.”   Similarly, prodded by the court and counsel to identify evidence of bias, JN3 said that JN4's “basic problem was with the whole specific intent” issue and that “she believed what Mr. Metters said happened.”   JN6 also claimed that “[b]asically what [JN4] was saying [was] that she didn't think the specific intent part of the crime was proved.”   JN10 felt JN4 was biased because she accepted the defendant's “reasoning for what he did.”   JN6 recalled that JN4 had said, “'I understand what you guys are saying but I believe in this because of what I know and then what do you know?   These are the facts, these are the facts.'   Then she brought up another matter which she's feeling that is the truth to her and then she said don't ever say that I'm feeling sympathetic for him because I have worked with drug people․”

JN4 also made it clear she did not consider herself unfairly biased.   Aware other jurors felt she might be influenced by her past employment in a drug rehabilitation program, JN4 raised this issue during voir dire, stating:  “when you are at an alcohol and drug program you fully expect people to take responsibility for their actions.   That's what it's all about.   This notion that I have some sympathy [for the defendant] because of the work that I've done is ludicrous.”

Taken in its entirety, the voir dire demonstrates only that JN4 held a strong opinion regarding the sufficiency of the government's case, as did many other jurors;  it does not show that she allowed any improper factors to influence her view of the evidence or the law.

The second reason given by the trial court for the replacement of JN4 was that she stated her belief the defendant was innocent before the deliberations commenced.   The only juror who made this claim, JN2, simply said that JN4 expressed her belief “10 to 15 minutes” after the jurors entered the deliberating room.   A statement of a belief in guilt or innocence 10 or 15 minutes after the case has been submitted to the jury and jurors have been sequestered in the deliberating room is not improper by any stretch of the imagination and provides no justification whatsoever for removal.1  Furthermore, as defense counsel pointed out to the court, JN2's claim that JN4 quickly declared her belief the defendant was innocent was contradicted by virtually every other juror asked to address this issue.   When asked:  “Before the jury actually started discussing the evidence ․ did you hear [JN4] say anything that would indicate she had already made up her mind?”   The other ten all answered “No.” JN9 went on to elaborate:  “I feel she has been participating and she's been trying.   I think sometimes she gets a little frustrated, but I honestly believe that she has been trying.”   When this juror was asked, “Did [JN4] ever appear disinterested or sort of off by herself?” she responded, “I don't think she was disinterested.   I think ․ if maybe you don't hold the opinion of others I think sometimes you kind of find yourself an outsider and you may be somewhat protective of yourself and-so you have a protective barrier up.   But I don't think she was disinterested.”

The third reason the trial court gave for removing JN4 was that she “would not candidly express her position, that she would not answer questions of other jurors, [and] wouldn't explain how she arrived at her decision in order that the entire jury might analyze her minority position.”   The statement is unjustified.   First of all, as previously noted, the pertinent complaint was not that JN4 failed to candidly explain her position, but that she failed to provide what other jurors considered a satisfactory explanation.   Almost all the jurors interviewed understood that JN4 felt the defendant was innocent for two related reasons.   First, as other jurors said, she repeatedly told them:  “I believe his testimony.”   Secondly, she also believed the defendant lacked the intent she understood was required by the applicable law.   Thus, JN3 was asked, “Did [JN4] share her view of the evidence with the other jurors?”   The juror responded:  “Yes.   Her problem seems to be with the specific intent․”   JN8 was asked “Did [JN4] participate in the questions and answers, the byplay in the jury room, about the evidence?”   She answered “Yes.”   The real problem, as this juror explained, was not that JN4 failed to explain her position but that “she just wouldn't keep her mind open to what we were trying to explain to her about what, you know, what the five points were, and she was just misunderstanding the laws what we were trying to explain to her and she just wouldn't get it.”  (Italics added.)   JN1, the juror most vehemently critical of JN4, conceded that JN4 shared her views with other jurors.   When asked whether JN4 answered direct questions put to her by other jurors, he responded:  “Yes, she does.   She tries to.   She tries to tell us her version and we say that's not-we want to know the law.   We want to know your version.”   JN1 said that when other jurors questioned her, JN4 “keeps going back to the intent and the law with respect to intent.”   When asked whether it would “be fair to say that she disagrees with your interpretation of the law?”   JN1 said, “Yes.”

A fair reading of the transcript of the entire voir dire establishes that JN4 not only expressed her own opinion but candidly answered the questions put to her by other jurors.   The problem the other jurors had was not that JN4 was unresponsive or failed to explain her position but that she disagreed with them, was unwilling to change her mind, and finally gave up trying to change theirs.   Thus, like others, JN11 agreed that JN4 “was paying attention to the proceedings throughout the course of the jury deliberations,” and “participate [d] in the give and take of the discussions of the evidence,” but allowed that “later on it was more of a defensive answering.”   Even JN10, who was particularly antagonistic to JN4, agreed that she tried to answer the questions of other jurors.   As she put it, “It wasn't so much refused to answer as it was stuck on a mindset and that's the only answer you're gonna get from me.”

The fourth reason given by the trial court for the removal of JN4 was that she “was adding elements that had to be proved beyond that set forth in the jury instructions.”   The record provided no basis for this determination.   Although, as noted, many jurors described JN4's belief that the defendant did not possess the requisite specific intent, none said she added any particular element to those enumerated in the court's instructions.   The statements of the jurors on this matter are typified by those of JN5. Like the others, he felt JN4 was unable to explain her “reasons behind her insight on [CALJIC No.] 2.02,” which is entitled “Sufficiency of the Evidence to Prove Specific Intent or Mental State,” and which is set forth in its entirety in the margin below.2  When asked about the nature of JN4's concern with this instruction, JN5 stated:  “Specific intent.   She had a problem with that.   That specific area.”   The court asked “Was [JN4] asked by any jury members to explain her position on that?”   The juror answered “By all of us, yes.”   The court then asked “Did [JN4] explain her position?”   The juror responded “No. Not clearly enough-she sort of beat around the bush but she never clearly stated why she thought that way.”   Finally, the court asked, “Did [JN4] at any time in the jury room say that she would not follow any one or more of the instructions of the law?”   The juror answered:  “Not to my knowledge.”   Other jurors said much the same thing.   For example, JN1 made it clear that JN4 disagreed with the other jurors with respect to the interpretation of “the instruction about circumstantial evidence and specific intent [i.e., CALJIC No. 2.02] and how that applies to [CALJIC No.] 9.40 sub point 5” which requires, with respect to the offense of robbery, specific intent to permanently deprive a person of property.   According to JN1, JN4 said “that she thinks in order to determine specific intent that you can look at everything in the day as going to what specific intent that person had.”   Several jurors used JN4's belief in the absence of specific intent to show she was “biased” or “unrational” or “unfairly sympathetic” to the defendant;  but no juror said JN4 had added any element that had to be proved by the prosecution that was not mentioned in the court's instructions.

JN4 also emphatically denied she was unable to follow the instructions relating to specific intent, or any other instructions given by the court.   When he interviewed JN4, the trial judge expressly inquired whether she could comply with the instructions pertaining to specific intent.   After rereading each of the three instructions relating to this issue, the judge asked, “Is there anything about that particular instruction that you feel you would not be able to conscientiously follow?”   Each time JN4 said “No.” Finally, the judge asked “Is there any instruction of law that's been given you beginning with last Thursday when the jury was instructed at the outset and right up to this very minute that you would not be able to conscientiously follow in evaluating the evidence and arriving at a verdict?”   Again, the juror answered “No.” There is nothing in the record suggesting this answer was dishonest.

Clearly, the issue was not so much JN4's view of the law as her view of the facts.   As voir dire revealed, the dispute in the jury room centered on JN4's belief that (in the language of CALJIC No. 2.02) the evidence as to the defendant's specific intent “permits two reasonable interpretations, one of which points to the existence of specific intent and the other its absence,” so that jurors “must adopt that interpretation which points to its absence.”   Because the other jurors did not believe the evidence could reasonably be interpreted as pointing to the absence of specific intent, they not only rejected her position but accused her of bias and asked that she be removed from the jury on that ground.

The evidence the trial court and my colleagues rely upon to show JN4 was “unwilling to deliberate” really shows only that she was unwilling to be coerced into accepting a view of the evidence she did not genuinely share.   None of the other jurors denied JN4 was fully engaged in the deliberations over a period of two days.   Their testimony shows that, as one juror explained, she only became “defensive” or “withdrawn” at the end, when the other jurors insisted that she either come up with new and more persuasive support for her view or change her mind.   Convinced of the merits of her position, JN4 refused to do so.   As JN4 stated in her note, “I believe that I have applied the law and all the instructions which the court has given to the best of my ability.   I am unable and unwilling to endure another day of deliberations like today.   I believe that the jury cannot reach consensus.   The other jurors cannot accept that I have reached another conclusion.   They want only a unanimous verdict.   I am unable to come to the same conclusion as they have.”

At the close of this case, as in all California trials, the jury was instructed that while “you should not hesitate to change an opinion if you are convinced it is wrong ․ you should not be influenced to decide any question because a majority of the jurors, or any of them, favor such a decision.”  (CALJIC No. 17.40.)   The record establishes that JN4 was removed from the jury because she acted on that principle.

When asked by the judge whether she felt that the other jurors “have applied undue pressure?”   JN4 responded, “Absolutely.”   When asked whether “you feel intimidated by the way in which the other jurors are conducting the jury deliberations?” she answered, “Very much.”   Nevertheless, when then asked “Do you feel that if you continue to deliberate with the other jurors you would be able to change your vote if your fellow jurors convinced you that you are wrong?”   JN4 responded:  “I'm open to the fact that I may be wrong.”   Asked, “Will you be able to change your vote if your fellow jurors convinced you that your decision is wrong?”   JN4 answered:  “I think if that were true I would be able to change my vote.   I've been unable to, but I'm not willing to deal with what went on in there yesterday.   They are not trying to convince me that I am wrong․   They are trying to convince me that I am stupid.”

After the trial judge finished his initial voir dire of JN4, the following colloquy occurred between defense counsel and JN4:

“Ms. Kupferer:  Q. You said earlier that you were intimidated by the deliberations.   Can you explain how you were intimidated by the deliberations?

“A. Well, the issue has become that the rest of the jurors believe that I don't understand, that I'm not applying the law.   I don't believe that to be the case.   Sometimes they tell me we don't want to hear what you have to say anymore and think say tell us what you have to say.   I'm like this yo-yo.   I'm at their mercy.

“Q. Do you feel like the 11 other jurors have ganged up on you in the course of deliberations?

“A. Absolutely.

“Q. When you say that you're unwilling to put yourself through this any longer, is it because of the way they have been treating you back in the deliberation room?

“A. Absolutely.

“Q. In discussing the facts with the other jurors, has there been anything that has been discussed by them or you that leads you to believe that you should change your vote?

“A. I have to say that I'm not a hundred percent convinced that what I think is right or true or accurate, and I don't-I trust that they have arrived at an opinion that is right for them.   I don't distrust their process or-and I don't necessarily think that they have to agree with me, but I think that they are unwilling to accept the fact that I have arrived at a different position than they have.

“Q. Earlier when the judge was asking you questions you said that you believed the jury has arrived at a verdict.   The only problem is that it's not unanimous, not all 12 people are agreeing.   Is that your position, as you sit here this morning?

“A. Yes, and they have said that.   That they are going to stay there forever until all 12 agree.

“Q. At some point in the trial if all 12 people don't agree then we get to a situation where there's what's called a hung jury or a is mistrial declared.   And in order to get to that spot we have to be at a spot where we're sure that there is no benefit for any further deliberations can be had.   Do you feel that we are at that point where there's no benefit to further deliberation?

“A. I do.

“Q. And do you feel that way because you and the other jurors have discussed the facts and the law over and over again and that you're not discussing anything new at this point?

“A. It's been said dozens of times.

“Q. So when you say that you're not willing to go back into that room, is it because of the fact that over the course of the hours that you were in the deliberation room yesterday nothing new was coming up as far as your discussions?

“A. Well, no, not even that.   I would be okay to talk about it for days, but I'm not willing to be the brunt of 11 people's personal-it's gotten to be a personal issue.   It's not the facts.   If they want to discuss just the facts I'm okay doing that, but they talk among themselves about how [JN4] doesn't know what she's doing.

“Q. Do you feel like you've made every effort possible, humanly possible, to follow-

“Mr. Daly [deputy district attorney]:  I am going to object.   These questions are leading.

“The Court:  They are leading.

“Ms. Kupferer:  Q. Do you feel like you've made every effort possible to follow the instructions that the judge has given you?

“A. Not only-I have.   I absolutely have.   Not only have I made every effort but I have followed-I am convinced that I have followed every law and every instruction, and I have pointed out to them what my issues are, what specific sentences.

“Q. Have you in the course of the deliberations made every effort to talk to the other jurors about your position?

“A. Yes. I think that we've been discussing the same things since late Thursday.

“Q. Do you feel that at this point the jury is at an impasse?   That it will not benefit from further deliberations?

“A. Yes, and I believe the others would agree.”

At this point, the trial judge asked JN4 “Are you willing to go back into the jury room, express your views and determine whether there was something you may have missed?”   She answered as follows:  “Well, I think that if I thought there was some end I would be willing to do that.   If I thought-I can't do this for three or four more days.   I'm willing to do it for, you know-it has to end at some point.”   The final question asked of JN4 was put by the trial judge:  “Is it correct that you are prepared to go back into the jury room and continue deliberations?”   After a long hesitation that was noted by the court, JN4 stated:  “This is difficult-I can't answer this question?”   At that point the voir dire of JN4 ended.

The questioning of JN4 does not show, as the majority repeatedly claims, any “manifest unwillingness to participate in the give and take of deliberations,” or that “she adamantly refused to deliberate further,” or that her “intransigency” was “egregious.”  (Maj. opn. at pp. 311, 312.)   On the contrary, it is not possible to say, as the Supreme Court requires in order to discharge a juror, that there is a “demonstrable reality” she was unable to perform as a juror.  (People v. Marshall (1996) 13 Cal.4th 799, 843, 55 Cal.Rptr.2d 347, 919 P.2d 1280;  People v. Johnson (1993) 6 Cal.4th 1, 21, 23 Cal.Rptr.2d 593, 859 P.2d 673.)

At no time did the trial judge inquire of any juror whether he or she believed it was possible that additional instructions or the rereading of testimony might render it possible to reach a unanimous verdict or make any attempt to persuade jurors to continue the deliberations.   Indeed, despite the exhortations of counsel,3 the trial judge explicitly refused even to consider the possibility that the jury was hung.   Instead, the court limited its inquiry to whether JN4 was guilty of misconduct.   The trial judge felt it “inappropriate” to determine whether the jury was hung because “[t]hat's for the jury to decide as a jury.   When they do that then I'll ask the questions about whether further instructions, further readback or anything else would be productive of a verdict.   This is premature.   The request [to declare a mistrial] is denied.”  (Italics added.)   This statement, together with the substance of the voir dire and the ultimate removal of JN4, indicates that the court believed a majority of the jurors could not only prevent it from considering whether the jury was hung, but could limit the court's determination to the propriety of the holdout juror's refusal to accede to the majority's determination of guilt.   This approach not only improperly permits jurors to influence the composition of the jury (People v. Roberts (1992) 2 Cal.4th 271, 325, 6 Cal.Rptr.2d 276, 826 P.2d 274 [“trial courts must not permit jurors to exercise any control over the composition of the jury.   That function is reserved exclusively for the trial court.”] ), but represents an abuse of discretion.   It also creates a substantial constitutional problem.

II.

The Law

In Apodaca v. Oregon (1972) 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, the United States Supreme Court held that the Sixth Amendment endows a criminal defendant with the right to a unanimous verdict.   Given the significance of the constitutional right at stake, the mere possibility a juror was discharged because he has doubts about the guilt of the defendant requires rigorous judicial scrutiny.   This principle was applied in United States v. Brown, supra, 823 F.2d 591, where Judge Abner Mikva, speaking as well for Judges Robert Bork and Douglas Ginsburg, explained that “a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government's evidence․   If a court could discharge a juror on the basis of such a request, then the right to an unanimous verdict would be illusory.   A discharge of this kind would enable the government to obtain a conviction even though a member of the jury that began deliberations thought that the government had failed to prove its case.   Such a result is unacceptable under the Constitution.   Thus, when a request for dismissal stems from the juror's view of the sufficiency of the evidence that the government offered at trial, a judge may not discharge the juror:  the judge must either declare a mistrial or send the juror back to deliberations with instructions that the jury continue to attempt to reach agreement.”   (Id. at p. 596.)   Acknowledging “that the reasons underlying a request for a dismissal will often be unclear,” the court in Brown held “that if the record evidence discloses any possibility that the request to discharge stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request.”  (Ibid., italics added.)

In Brown, the jury sent the trial judge a note indicating it could not unanimously agree.   Later the same day, juror Spriggs sent the court a note stating:  “I ․ am not able to discharge my duties as a member of this jury.”   On voir dire, Spriggs explained to the court that he didn't agree with the RICO statute.   The trial court found just cause to dismiss Spriggs on the ground (used also in the present case) that the juror “would not follow the law and thus could not discharge his duty as a juror.”  (Id. at p. 595.)   The Court of Appeals concluded that the discharge was error because the record evidence “indicates a substantial possibility that juror Spriggs requested to be discharged because he believed that the evidence offered at trial was inadequate to support a conviction.”  (Id. at p. 596.)   The court explained that at the beginning of his colloquy with the trial judge it appeared that Spriggs' difficulty stemmed from the terms of the statute.  “As the judge continued to question Spriggs, however, the juror began to speak of the evidence offered at the trial.   Spriggs specifically stated that his difficulty was with ‘the way [the act is] written and the way the evidence has been presented’ (emphasis added);  he further noted that ‘[i]f the evidence was presented in a fashion in which the law is written, then, maybe, I would be able to discharge my duties.’ ”  (Id. at p. 597.)   The Court of Appeals noted that “[t]hese statements, at the very least, create an ambiguous record․   We may not be able to say for a certainty that Spriggs' desire to leave the jury stemmed from his view of the adequacy of the government's evidence.   But we cannot say with any conviction that Spriggs' request to be dismissed stemmed from something other than this view.   Given the possibility-which in this case we think a likelihood-that Spriggs' desire to quit deliberations stemmed from his belief that the evidence was inadequate to support a conviction, we must find that his dismissal violated the appellants' right to a unanimous jury verdict.”  (Ibid., italics added.)

Shortly after Brown was decided, the Second Circuit decided United States v. Hernandez, supra, 862 F.2d 17, which is in certain respects remarkably similar to the present case-including the numerical identification of the juror in question.   In Hernandez, the trial court received a note signed by eleven jurors stating, among other things, that Juror No. 4 “has a prejudice and lacks the rational common sense to deliberate in a logical way.”   Before the trial judge could question Juror No. 4, he received a second note stating that as a result of a disagreement between Juror No. 4 and the other jurors regarding the substance of a request for information from the court, “Juror No. 4 then threw water in Juror No. Twelve's face.   Juror No. Seven tried to stop Juror No. Four who struck out at Juror No. Seven, he twisted Juror No. Seven's arm.”  (Id. at p. 20.)   On voir dire, Juror No. 4 “stated that he threw the glass of water only after another juror had assaulted him.”  (Ibid.) After the jury assured the court they could continue to deliberate “in a calm manner,” he permitted further deliberations.   On the fourth day of deliberations the court received two more notes from the jury.   The first presented the court with ballots on three counts against one defendant, signed only by eleven jurors.   The accompanying note asked whether Juror No. 4 could rescind a vote he had cast the previous day, and the court responded that a juror could change his or her mind.

The next and final note stated that “we the 11 jurors feel that it was unfair to us that we had to work with a ‘mentally incompetent person,’ ․ we ․ were able to sacrifice our own emotional frame of mind and we tried and we tried and we tried to reach Juror No. 4 on every level.   Each juror reviewed the evidence with him in detail.   In a calm non-emotional way his sense of reason could not be found․   He signed a statement that he would not change his mind, in front of the entire jury.”  (Id. at p. 21.)   After receiving this note the trial court conducted a final voir dire of the recalcitrant juror, which revealed that the juror had been discharged from the service on the basis of a psychiatric disability, which he described as “not fit[ting] in” and as a “neurosis.”   The juror was still receiving disability payments for this condition.  (Id. at p. 22.)   The trial court then dismissed Juror No. 4.

The Court of Appeals reversed because, among other things, “it is not clear in the record that the removal was because of mental incompetence rather than to avoid a hung jury.”  (Id. at p. 23.)   The court stated as follows:  “That a juror may not be removed because he or she disagrees with the other jurors as to the merits of a case requires no citation.   Moreover, removal of the sole holdout for acquittal is an issue at the heart of the trial process and must be meticulously scrutinized.”  (Ibid., italics added.)

Without reaching the question whether the trial court's finding of mental incompetence was adequately supported by the evidence, so as to provide “just cause,” the Second Circuit found it was error to discharge the juror primarily because “it is not clear in the record that the removal was because of mental incompetence rather than to avoid a hung jury.”  (Id. at p. 23.)

Recently, in United States v. Thomas, supra, 116 F.3d 606, the Second Circuit reaffirmed its adherence to the principle articulated in Brown and Hernandez:  “We adopt the Brown rule as an appropriate limitation on a juror's dismissal in any case where the juror allegedly refuses to follow the law-whether the juror himself requests to be discharged from duty or, as in the instant case, fellow jurors raise allegations of this form of misconduct.   Given the necessary limitations on a court's investigatory authority in cases involving a juror's alleged refusal to follow the law, a lower evidentiary standard could lead to the removal of jurors on the basis of their view of the sufficiency of the prosecution's evidence.”  (Id. at p. 622.)

The Thomas court then bolstered its conclusion with a hypothetical that presciently anticipated the scenario presented in the case before us:  “Consider a case where, for example, a strong majority of the jury favors conviction, but a small set of jurors-perhaps just one-disagrees.   The group of jurors favoring conviction may well come to view the ‘holdout’ or ‘holdouts' not only as unreasonable, but as unwilling to follow the court's instructions on the law.   The evidentiary standard that we endorse today-that ‘if the record evidence discloses any possibility that’ a complaint about a juror's conduct ‘stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request’-serves to protect these holdouts from fellow jurors who have come to the conclusion that the holdouts are acting lawlessly.  [¶] This evidentiary standard protects not only against the wrongful removal of jurors;  it also serves to protect against overly intrusive judicial inquiries into the substance of the jury's deliberations.”  (Id. at p. 622, fn. omitted.)

The Brown line of cases is not aberrant.   Without relying on the federal case law, state courts have employed similar reasoning and independently reached the same result.   The decision last year of the Kansas Supreme Court in State v. Cheek (1997) 262 Kan. 91, 936 P.2d 749, is illustrative.   There, juror Barnes asked to be discharged after revealing to the court that he was a lone holdout for acquittal and that “'[I]f it's going to boil down to a question of whether or not I can be fair and impartial, based on my feelings and my convictions, I don't think that I can arrive at that sort of decision.”'  (936 P.2d at p. 754.)   Barnes also said “that if he remained on the jury, it would be unable to reach a decision;  that he had reached a decision from the evidence and he did not believe his convictions could be changed.”  (Id. at p. 758.)   Finding the trial court lacked reasonable cause to remove the juror, the Kansas Supreme Court found that “[t]he dismissal of Barnes was an abuse of discretion.   The early mention in the transcript of the proceedings implicating Barnes' ability to remain fair and impartial is not sufficient to justify the trial court's actions in light of a reading of the entire transcript.   This transcript reveals the dismissal of a juror who suffered from no impairment, who appeared to hold a different view of the case from the remaining jurors, who believed his convictions could not be changed, and who had been on the verge of being sent back to deliberate when he was, without reasonable cause, discharged from further service.   The juror was not ill, incapacitated, or affected by personal reasons;  he had no problems with the high visibility of the case;  and he clearly stated that if he remained on the jury, he did not believe a [unanimous] decision could be reached.   There is a total absence of any justifiable reason for the dismissal.”  (Id. at p. 760.)   Aware of the claim that Barnes' removal from the jury violated the defendant's Sixth Amendment right to a unanimous jury verdict (Id. at p. 755), the court underscored its “principal point” that “[t]here was no evidence Barnes was unable to render a decision or that his inability was based on anything other than his view of the evidence ” (Id. at p. 761, italics added), and on that basis reversed convictions of first-degree murder and aggravated assault.

Unwilling to accept this reasoning, my colleagues claim that Brown, Hernandez and Thomas (which are harder to ignore than state cases like Cheek ) are distinguishable, because “[h]ere, the trial court did not suffer from a lack of clarity concerning JN4's reasons for refusing to continue the deliberative process.”  (Maj. opn. at p. 315.)   It is true there was no lack of clarity;  but what was clearly revealed was not a refusal to deliberate- for JN4 had been deliberating for days and never adamantly refused to continue-but a refusal to be coerced into agreeing that the defendant was guilty.   The stalemate that led to the discharge of JN4 was manifestly rooted in her unwillingness to submit to the other jurors' view of the evidence and the unwillingness of the other jurors to countenance her disagreement.   Indisputably, there is at least the possibility this was the case.

Straining to find some tenable basis upon which to distinguish the Brown line of cases, the majority advances the novel proposition that the constitutional principle for which those cases stand was “motivated” by “the exigencies imposed by the peculiarities of federal criminal procedure;”  namely, the fact that under Rule 24(c) of the Federal Rules of Criminal Procedure, alternate jurors are discharged upon submission of the case to the twelve deliberating jurors, so that the discharge of a lone holdout for acquittal will invariably result in a verdict of guilt.  (Maj. opn. at p. 316.)   The suggestion that federal courts have manipulated the meaning of the Sixth Amendment because of this unmentioned concern, rather than the much more fundamental problems the courts overtly address, seems to me fanciful.   In the vast majority of cases it will as a practical matter make little or no difference whether the holdout juror can be replaced by an alternate or the matter may be decided by the eleven remaining jurors.   The views of the remaining jurors are in either case almost certain to prevail, as happened in this case almost immediately.4  As one commentator has observed “both substitution and dismissal of deliberating jurors [without substitution] carry the risk that holdouts-or jurors perceived as potential holdhouts-will be accused of misconduct by observers or by other jurors in hopes that they will be dismissed.”  (King, Juror Delinquency in Criminal Trials in America, supra, 94 Mich.L.Rev. 2673, 2749.)   The federal courts that have emphasized the great caution that must be taken when the removal of a lone holdout juror is proposed have never limited the rule to situations in which the removed juror could not be replaced and neither, so far as I am aware, have any state courts done so.   Nor should we.

My colleagues' Herculean but futile effort to justify their rejection of the federal cases that offend them is also based on the erroneous suggestion that California courts are less concerned than federal courts with the danger of removing a lone holdout for acquittal.   According to the majority, “California authority accords the same deference to the trial court's discretionary decision to dismiss a juror regardless of whether the juror was holding out for acquittal.”  (Maj. opn. at pp. 315-316.)   In support of this statement, the majority cites People v. Roberts, supra, 2 Cal.4th 271, 6 Cal.Rptr.2d 276, 826 P.2d 274 and People v. Feagin (1995) 34 Cal.App.4th 1427, 40 Cal.Rptr.2d 918, neither of which even address the constitutional problem with which we are here concerned.   Moreover, the California Supreme Court has indicated its agreement with the basic idea of the Brown line of cases, that special precautions must be taken when a lone holdout is sought to be removed from the jury.  “While it has been said repeatedly ․ that a defendant is not entitled to be tried by a jury composed of any particular individuals, but only of a jury composed of qualified and impartial jurors, this does not mean that either side is entitled to have removed from the panel any qualified and acting juror who, by some act or remark made during the trial, has given the impression that he favors one side or the other.   It is obvious that it would be error to discharge a juror for such a reason, and that, if the record shows (as it does here), that, based on the evidence, that juror was inclined toward one side, the error in removing such a juror would be prejudicial to that side.   If it were not, the court could ‘load’ the jury one way or the other.”  (People v. Hamilton (1963) 60 Cal.2d 105, 128, 32 Cal.Rptr. 4, 383 P.2d 412, disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d 815, 864, 277 Cal.Rptr. 122, 802 P.2d 906.)   In short, until today, no California court has questioned the constitutional principle articulated in Brown and its progeny.

People v. Thomas (1994) 26 Cal.App.4th 1328, 32 Cal.Rptr.2d 177, which the majority relies upon, also fails to address the constitutional issue.   Presumably because the trial court made no inquiry into jurors' thought processes, the Court of Appeal did not credit the defendant's claim that the juror who was removed was a lone holdout for acquittal, as the language of the opinion indicates the court felt the misconduct was “'neutral' as between the parties and does not suggest bias toward either side.”  (Id. at p. 1333, 32 Cal.Rptr.2d 177, quoting People v. Daniels, supra, 52 Cal.3d 815, 863-864, 277 Cal.Rptr. 122, 802 P.2d 906.)   Moreover, the juror removed in that case secreted notes he had made during trial and took them home with him despite the trial court's warning not to do so (Ibid.), and was completely inattentive.   Unlike JN4, he never entered into discussions with other jurors and even refused to sit at the table with them.  People v. Thomas, supra, is simply one of many California cases showing that the sort of juror misconduct that justifies removal under Penal Code section 1089 requires a much stronger showing of impropriety than was made here.  (See, e.g., People v. Johnson, supra, 6 Cal.4th 1, 21, 23 Cal.Rptr.2d 593, 859 P.2d 673 [untruthful answers to questionnaire and sleeping during trial];  People v. Daniels, supra, 52 Cal.3d 815, 863, 277 Cal.Rptr. 122, 802 P.2d 906 [discussed case with outsiders and expressed opinion prior to start of deliberations];  People v. Guzman (1977) 66 Cal.App.3d 549, 555, 136 Cal.Rptr. 163 [bartering acquittal of one defendant for guilt of another].)  Few of these cases involve a lone holdout and none address a claim under the Sixth Amendment.

The majority opinion of the Ninth Circuit in Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, which the majority finds more “evenhanded” than that of the Brown line of cases, does involve a Sixth Amendment claim, but the facts of that case are manifestly different from those here. Indeed, Perez actually undermines the majority's position, because the conduct of the trial approved by the Ninth Circuit in that case is precisely that which my colleagues consider unwise and unwilling to require.

In Perez, shortly after jury deliberations began, the bailiff told the judge that juror Robles wanted to speak to him.   After making clear that she had a reasonable doubt as to the defendant's guilt, she explained that “'everybody is mad at each other in there,' that the jurors were all ‘stressing out,’ and that ‘the guy with the accent yelled at her.’   She told the judge that she was distressed and that she did not want the responsibility of deciding whether Perez was guilty.”   When asked whether she was willing to continue deliberating, Robles asked whether she would “get in trouble” if she did not.   When told she would not, she refused:  “You know, I really just don't want to.   I don't want to stress on it no more.   Because, you know, last night I ․ was all upset, and today I come back, these people are all-everybody is upset.   And I don't want to.”  (Id. at p. 1424.)

At that point the court pursued a course of action completely different from that taken here.  “The judge explained that ‘as a juror what you have to do is partake in the decision.   You have to be in there and give and take and let your views be known, and listen to other people's views.”’  (Ibid.) When the juror asked “'[w]hat happens if I'm the only one that says that?   Then I just stick that way?'   The court answered yes, ‘[i]f you think you're right and being reasonable,’ to which Robles replied ‘What if I'm wrong?’   The judge answered:  ‘Those are questions I can't answer.   You just have to do your best.   Will you give it a try and continue to deliberate with the jurors, see how it goes?’   Robles replied:  ‘I don't want to be there.   If they say he's guilty, I don't want to be sitting there.   I don't want to be part of putting someone in jail for a long time even though he may be guilty.   But-it makes me feel bad.   I feel sorry for him.   But then, if he's guilty, I don't- I feel bad if he went out and hurt somebody, too, because it could be me.”   (Ibid.) During this colloquy the juror was twice in tears.   Nevertheless, and over the objection of the prosecution, which wanted the juror excused, the judge persisted in urging the juror to return to the deliberations.   Eventually he succeeded.   After deliberations resumed difficulties arose and the judge excused all jurors except for Robles.  “When asked what happened, Robles explained that ‘the lady was mad at me’ because the other eleven jurors had persuaded her to agree with them on a verdict but then she changed her mind․”   Robles indicated that she had not refused to have further discussions with the jury.

“The judge explained to Robles that a ‘juror is ․ supposed to be able to discuss the case with the other jurors, and not get overly emotional.’   When the judge asked Robles if she was emotionally able to continue deliberations, she indicated that she was not.   The judge excused Robles for the evening, and at [the defendant's] request, agreed to wait until the next morning to determine whether Robles was fit to continue as a juror.”  (Id. at p. 1425.)   The next day Robles “indicated that she still did not want to continue on the jury, but said that she would if she had to.   She agreed, however, that ‘it would be a very emotional experience ․ like it was yesterday with tears and everything else.’ ”  (Ibid.) The judge finally agreed Robles was incapable of continuing.  “He expressed a wish that Robles' appearance had been recorded on a video camera, ‘because so much not only from what she actually expressed but what you could just tell from looking at her that she, particularly yesterday, appeared to be an emotional wreck․’   He then explained:  ‘Watching today, her head is bowed;  she looked tentative and coerced, and she is willing to do what she is forced to do, I suppose.   With the bailiff armed in the courtroom here and the proceedings are ominous to her, and that's the impression I get ․ I think she is just emotionally out of control.   And so I will find cause.”’  (Ibid.)

The repeated (though ultimately futile) efforts made by the trial judge in Perez to induce the holdout juror to continue to deliberate have no counterpart in this case, where the court abdicated that judicial responsibility.   Moreover, the recalcitrant juror in Perez was at first far more demonstrably unwilling to deliberate than the juror with whom we are here concerned, who, when the question was directly put to her, was unwilling to say she would not continue to deliberate.   Finally, the trial judge in Perez never allowed the inquiry of juror Robles to examine her thought processes or the substance of her disagreement with other jurors, nor was any inquiry made of the other jurors, or their thought processes.

The type of judicial efforts made in Perez to induce the continuation of deliberations-which are similar to those our Supreme Court has approved (see, e.g., People v. Pride (1992) 3 Cal.4th 195, 10 Cal.Rptr.2d 636, 833 P.2d 643)-are common and entirely appropriate, provided the court “remind[s] jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party.”  (United States v. Mason (9th Cir.1981) 658 F.2d 1263, 1268;  accord, People v. Sheldon (1989) 48 Cal.3d 935, 958-959, 258 Cal.Rptr. 242, 771 P.2d 1330;  People v. Keenan (1988) 46 Cal.3d 478, 534, 250 Cal.Rptr. 550, 758 P.2d 1081.)   As Witkin points out, “urging [jurors] to attempt to reach an agreement, or ordering them to retire for further deliberations, is ․ permissible, where the language used does not contain any element of coercion to reach a particular verdict.  [Citations.]”  (6 Witkin & Epstein, California Criminal Law (2d ed.   1989) § 3019 at p. 3726.)

Such neutral efforts are not nearly as constitutionally dangerous as the situation created by the court in this case.   The trial court knew JN4 was a lone holdout for acquittal and knew the eleven remaining jurors were aware he acted with this knowledge.   As Judge Nelson pointed out in Perez, the removal of the juror in that situation “send[s] a strong message to the remaining 11 jurors that the trial court endorsed their proclivity for conviction and implicitly encouraged them to ‘hold their position.’  ․ This kind of reverse coercion interferes with the jury's independent deliberations and threatens the defendant's Sixth Amendment right to a fair trial.   A replacement juror, no matter how novel or persuasive her argument for Perez's acquittal may have been, would have been hard pressed to overcome the trial court's implied admonition to the original jurors to hold their ground and convict.”  (Perez v. Marshall, supra, 119 F.3d at p. 1429, dis. opn. of Nelson, J.)

The problem Judge Nelson identified in Perez was exacerbated in this case by the remarkable voir dire undertaken by the trial court, which, as I have said, flagrantly and unnecessarily invaded the privacy of the jury.   The prospect that such an inquiry would strengthen the resolve of the remaining jurors to convict the defendant and undermine the independence of the replacement juror should have been anticipated by the trial judge.   For example, the court allowed each of the eleven other jurors to describe the nature of their disagreement with JN4's view that the government failed to establish that defendant possessed specific intent to rob.   JN4's removal must therefore have been interpreted by the remaining jurors as judicial vindication of their view that specific intent was shown, a likelihood demonstrated by the rapidity with which the replacement jury returned a guilty verdict.   This is precisely the “reverse coercion” of jurors that must not be allowed.

As the Second Circuit has explained, “[p]rotecting the deliberative process requires not only a vigilant watch against external threats to juror secrecy, but also strict limitations on intrusions from those who participate in the trial process itself, including counsel and the presiding judge.   A court must limit its own inquiries of jurors once deliberations have begun․   The very act of judicial investigation can at times be expected to foment discord among jurors․   In particular, a presiding judge is limited in the extent to which he may investigate the reasons underlying a juror's position on the merits of a case,․  The mental processes of a deliberating juror with respect to the merits of the case at hand must remain largely beyond examination and second-guessing, shielded from scrutiny by the court as much as from the eyes and ears of the parties and the public.   Were a district judge permitted to conduct intrusive inquiries into-and make extensive findings of fact concerning-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, this would not only seriously breach the principle of the secrecy of jury deliberations, but it would invite trial judges to second-guess and influence the work of the jury.”  (United States v. Thomas, supra, 116 F.3d at p. 620.)

The central principle of the Brown line of cases-that the need to preserve the secrecy of jury deliberations requires an investigation of misconduct to cease once “any possibility” arises that the request for removal may be related to a juror's view of sufficiency the evidence-does not conflict with People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251, as the majority claims.  (Maj. opn. at p. 316.)   As my colleagues correctly point out, Burgener establishes that a trial court ordinarily has a “duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged,” and that failure to do so is error.  (Burgener, supra, at pp. 519-520, 224 Cal.Rptr. 112, 714 P.2d 1251.)  Burgener does not, however, pertain to the situation in which the grounds upon which removal is considered might possibly relate to the juror's view of the evidence.   In Burgener “the court and counsel were notified that one of the jurors may have been intoxicated during a substantial part of the deliberations.”  (Id. at p. 516, 224 Cal.Rptr. 112, 714 P.2d 1251.)   The case thus relates to the more common situation in which a juror is incapacitated or physically unavailable.   Burgener does not conflict at all with Brown, Hernandez or Thomas, because there was no possibility in Burgener that the alleged misconduct had anything to do with the juror's view of the evidence and the appropriate investigation would not have necessitated any inquiry into the thought processes of jurors.   My colleagues' unjustified reliance on Burgener results from their indifference to the distinction between the situation in which dismissal of a juror is sought because he or she is incapacitated or unavailable and that in which dismissal is sought because of the juror's view of the sufficiency of the evidence.

For the same reason, the majority's suggestion that decisions of the Fifth Circuit reject the Brown line of cases is unfounded.   The two Fifth Circuit cases the majority relies upon both involved physical incapacities unrelated to the juror's opinion regarding the sufficiency of the evidence.   In United States v. Leahy (5th Cir.1996) 82 F.3d 624, the discharged juror was found unable to deliberate because he was partially deaf.   The record showed that the juror “had not heard significant amounts of testimony, and could not participate in deliberations because he could not hear, and thus could not follow the conversations in the jury room.”  (Id. at p. 629, fn. omitted.)   Objecting to discharge, the defendants claimed that the juror in question was a holdout “at least on some counts.”  (Ibid.) The Court of Appeals dealt with this dubious claim in a footnote, in which it pointed out that “the evidence advanced to support juror Orr's status as a holdout is not inconsistent with evidence of his hearing impairment-his refusal to deliberate could have been, as the district court found, the result of his inability to hear, and not his convictions about the case.”  (Id. at p. 629, fn. 4.) The statement in the same footnote that “[e]vidence that a juror was holding out ․ does not alter the trial court's discretion in removing the juror,” was clearly not intended to repudiate the decisions of the District of Columbia Circuit and the Second Circuit, which are never even adverted to in Leahy.

The other Fifth Circuit case the majority relies upon, United States v. Huntress (5th Cir.1992) 956 F.2d 1309, cert. den.  508 U.S. 905, 113 S.Ct. 2330, 124 L.Ed.2d 243, also never rejects or even cites Brown and its progeny.   Like Leahy, Huntress involved a juror with an undisputed physical incapacity.   The juror's physician stated that the juror, who was suicidal and had to be hospitalized, was “suffering from paranoia stemming from a history of drug abuse” (Id. at p. 1311), and “could not make a decision in the case in his present condition.”  (Id. at p. 1312.)

The important distinction between dismissal due to a juror's incapacity and dismissal due to a juror's views was underscored in United States v. Thomas, supra, 116 F.3d 606, where the Second Circuit noted that where discharge is sought on the basis of a physical incapacity or for a religious reason, evidence of the juror's unavailability may be obtained without any inquiry into the substance of the jury's deliberations.  “In such instances, the judge is free to conduct a thorough examination of the basis for removal-a basis that is itself unlikely to be confused with a juror's views of the sufficiency of the evidence-and to make appropriate findings of fact, including determinations of the credibility of the juror in question.”  (Ibid.) The court went on the emphasize, however, that the need to protect the secrecy of jury deliberations begins to limit the court's investigatory powers where, as in the present case, “the asserted basis for a deliberating juror's possible dismissal is the juror's alleged bias or partiality in joining or not joining the views of his colleagues.”  (Id. at pp. 620-621.)   In those delicate situations, the judicial investigation must be rigorously limited.   The trial judge must “establish whether a juror is biased or otherwise unable to serve without delving into the reasons underlying the juror's views on the merits of the case.”  (Id. at p. 621.)

The judicial investigation that took place in the present case was stimulated by a note from the foreperson of the jury requesting that JN4 be removed “due to her bias,” in that “[s]he is unfairly sympathetic to the defendant.”   It is hard to imagine a clearer signal that the removal of this juror was sought because she questioned the sufficiency of the government's evidence.   Not only did the trial court ignore this red flag and proceed to interrogate each of the twelve jurors as to the nature of the alleged “bias,” but he pinpointed the exact nature of the dispute between the holdout juror and the others:  her belief that the defendant's testimony was credible and that the government had failed to provide persuasive evidence of specific intent to rob.   This judicial conduct, repeatedly condemned by federal courts as a violation of a criminal defendant's Sixth Amendment right to a unanimous verdict, has never been approved by any California court until today.

The failure of the trial court to limit its inquiry to the reasonable probability, if any, that a unanimous verdict could have been reached, as defense counsel repeatedly urged, invaded the secrecy that must be accorded the deliberations of a jury and deprived defendant of a fair trial.   Though my colleagues concede that “jurors revealed their voting positions and thought processes in some detail” (maj. opn. at p. 312, fn. 17), and caution trial judges not to conduct such inquiries, they finesse this problem on the ground that appellant is not now raising the improper voir dire as a ground for reversal.   This is a mistake.   The responsibility to insure a fair trial rests not with lawyers or litigants but with judges.   Appellant moved for mistrial and appeals the denial of that motion, which is sufficient to preserve his right and to require us to fully discharge our responsibility.

For the foregoing reasons, I would reverse the judgment and remand the case for retrial.

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

2.   At trial, appellant testified that the dealers broke down the debt and he was only required to bring them $200 within one hour to avoid the threatened “drive-by” shooting.

3.   Although the court refused to instruct the jury on duress and necessity, appellant was permitted to testify about events leading up to the robbery.

4.   The facts surrounding this dismissal are set forth post in section III. B of this opinion.

5.   Unlike the codified defense of duress, necessity is a judicially created rule of justification grounded in public policy.  (Heath,supra, 207 Cal.App.3d at pp. 900-901, 255 Cal.Rptr. 120.)

6.   The court stated:  “The People and the defendant are entitled to the individual opinion of each juror.   Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so.   Each of you must decide the case for yourself but you should do so only after discussing the evidence and the instructions with the other jurors.“It is the solemn duty of each and every juror to discuss all of the evidence and the instructions with the other jurors and to make a good-faith effort to apply the law to the facts.“This duty to discuss the evidence and the law continues until such time as the jury either reaches a verdict or informs the court that it is hopelessly deadlocked.“A juror or jurors who refuse to follow the law or refuse to participate in the deliberations of the jury is not performing his [or] her [duty] as a juror.“Do not hesitate to change an opinion if you are convinced it is wrong.   However, do not decide any question in a particular way because a majority of jurors or any of them favor such a decision.“Do not decide any issue in this case by chance, such as the drawing of lots or by any other chance determination.“It is hoped that that instruction answers the question that has been presented.   If it doesn't, if there is other assistance that you request of the court, if there is other information you wish to call to the court's attention, then of course you would follow the same procedure that has just been followed.“If you'll please return to the jury room and continue your deliberation.”

7.   All further references to specific jurors will be in this abbreviated form, using the appropriate number assigned to each juror by the trial court.

8.   After the court concluded questioning JN7, JN4, and JN1, appellant objected to further questioning and requested the court limit any inquiry into whether a mistrial should be granted on the basis that the jury was deadlocked.   The court denied this request and continued questioning the jurors to determine whether JN4 should be dismissed for good cause.   At the conclusion of the misconduct investigation, appellant renewed his motion for mistrial on the ground that the jury was at an impasse.   The court refused to declare a mistrial.Appellant does not contend the trial judge erred by denying the request for a mistrial based on the jury's deadlocked status or by improperly limiting the scope of its inquiry to whether JN4 engaged in misconduct.   Thus, review of these issues has been waived.  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4, 188 Cal.Rptr. 115, 655 P.2d 317;  Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685, fn. 4, 33 Cal.Rptr.2d 562.) Even if these matters had been preserved for appellate review, we would conclude the court's rulings were well within its discretion.The trial judge noted that questions directed at ascertaining whether the jury was at an impasse were inappropriate, stating:  “We are not ․ at that point yet.”   The court characterized any inquiry into whether it should declare a mistrial based on the juror's inability to agree as “premature.”   These decisions are fully supported by the record.At the outset, the notes from the jury complain merely about the perceived aberrant behavior of JN4, and do not state that a majority of the jury believed it was at an impasse.   Moreover, what was indirectly gleaned from the jurors regarding this subject during their interviews supported the court's view that if the jury continued to perform its responsibility to deliberate, there was some reasonable probability that agreement could be reached.   For instance, JN1 reflected briefly on the status of the jurors' collective frame of mind, stating:  “ ․ [¶] We are all open-minded.   We are willing to see her side.   She will not do that.   She refuses to do that.”   In response to a direct question by the court concerning her willingness to continue deliberating, JN1 answered affirmatively:  “Q [BY THE COURT]:  Are you willing to continue deliberating?   A[JN1]:  Yes, I'm willing to continue deliberating.”   Later in the investigation, JN2 indicated that he held a similar view:  “Q [DEFENSE COUNSEL]:  Would it be fair to say that yesterday the other 11 jurors tried to convince her to change her mind?   A[JN2]:  No, I don't believe so.   Because like myself, I feel that we were very open, we were trying to explain how we felt and the reasons for how we felt, and I was not interested in changing her mind.”These comments, however brief, reveal a willingness to continue deliberating with minds open which was undiminished by the uncooperative behavior of JN4. On this record, the trial court was amply justified in determining that this was not a hung jury, as is the surmise of the dissent, because there existed the reasonable probability that agreement could be reached if the jury continued to deliberate appropriately.   Instead, the record indicates the jury sought the assistance of the court to cope with a deliberative obstacle, namely, the unwillingness of a single juror to participate fairly in deliberations.   Therefore, it was not an abuse of discretion for the court to refuse defense counsel's motion for a mistrial under section 1140 or to limit the focus of the inquiry.

9.   For example, JN1 stated:  “I really do feel that she is sympathetic to [appellant] in what she's bringing up and the excuses she's making.”   According to JN6, JN4 was unfairly sympathetic to appellant because “you can see it in her face, and it's almost to a point where she's contradicting herself because something was making her not go through with what she wanted to say.”   JN8 believed JN4 was unfairly sympathetic to appellant because “[s]he was basically saying that she is sympathetic and that he got [into the] situation that he's in by making stupid mistakes with all the drugs, ․ ” JN12 believed JN4 was unfairly sympathetic to appellant because she “feels sorry” for appellant and “she keeps trying to find excuses․”

10.   This testimony is fully discussed post in section III. B 2 entitled “Refusal to Deliberate.”

11.   For example, JN2 testified JN4 told her she believed appellant was not guilty after the jury had retired to the jury room but before deliberations began.   JN3 stated JN4 was willing to share her views, but “didn't really want to listen to what we had to say, like she'd already made up her mind and that was final.”   JN10 stated that JN4 did not refuse to answer the questions of other jurors, but was “stuck on a mindset and that's the only answer you're go[ing to] get from me.”

12.   JN1 testified:  “She keeps going back to the intent law and reading things into the ․ law that aren't there.”   JN3 testified that when the other jurors confronted JN4 with the law, she said she wouldn't follow it.   When the other jurors discussed the judge's instructions with JN4, she “didn't want to go along with that either.   She wanted to do her own thing.”   She added elements that were not listed in the instructions.   According to JN10, JN4 refused to follow the judge's instructions regarding specific intent.   She told the rest of the jury “ ‘I don't have to follow the law.’ ”

13.   The court also noted for the record that the replacement of JN4 as presiding juror and the jury's request that the court reporter read back portions of JN4's voir dire examination certainly were “unusual,” but decided to “pretty much disregard[ ]” these factors in rendering its decision.

14.   As previously described, JN7 testified JN4 was “unwilling to articulate her opinion so that we can attempt to refute it.”  (Ante at p. 306.)

15.   The transcript of JN2's testimony provides in part:“Q [BY THE COURT]:  [JN2], you made some reference to comments made immediately upon going into the jury room.   Did [JN4] at any time immediately upon going into the jury room say anything that led you to think that she'd already made up her mind as to what the verdict ought to be?.    .    .    .    .“[Q:] Did [JN4] say that she had arrived at a verdict at that point?“A [JN2]:  Yeah, she did.   She said-yeah, she did.“Q:  What was it that was said?“A:  She said I believe he's not guilty.“Q:  How long into the deliberations did that occur?   How long after going into the jury room?“A:  We first went in there-maybe 10 to 15 minutes.“Q:  Had there been any deliberations, that is, discussion or debate about the evidence before [JN4] made that statement?“A:  No.”

16.   The jurors were not deliberating on the day of the court's investigation into the allegations of misconduct.

17.   Because we find good cause existed to discharge JN4 for her conduct during deliberations and her subsequent refusal to complete the deliberative process, we need not decide the correctness of the alternative grounds stated by the trial court in support of its decision.

18.   Despite these efforts, the jurors revealed their voting positions and thought processes in some detail.   The parties have not raised this breach of the secrecy of the jury deliberations as a ground for reversal, however, we offer the following comments in an effort to guide trial judges faced with the delicate task of investigating juror misconduct after the commencement of deliberations.   When conducting such an inquiry, each juror should be admonished to refrain from revealing the thought processes of individual jurors and their positions regarding conviction or acquittal.   If counsel are permitted to question the jurors directly, the court should continue to strictly supervise the proceedings in order to protect the jurors from overly intrusive inquiries.   The court may wish to admonish counsel to refrain from asking questions designed to uncover a specific juror's voting patterns or the substance of the jury's deliberations.   Improper questions should be interrupted by the court immediately regardless of whether an objection is voiced.   In particularly sensitive investigations, the court may wish to exercise the option of requiring counsel to submit their questions in advance for court review.   We present these suggestions in the hope that they will assist trial judges faced with the difficult undertaking of balancing the duty to investigate and correct juror misconduct against the need to protect the secrecy of jury deliberations.   These suggestions are by no means intended to be applied pedantically, nor are they exhaustive.   Also, we do not mean to suggest that failure to adopt these guidelines would necessarily result in error.

19.   We note that the jury in Heath,supra, 207 Cal.App.3d at p. 902, 255 Cal.Rptr. 120, discussed earlier in connection with the duress defense, deliberated 25 minutes before reaching a guilty verdict.

20.   Somewhat ingenious efforts to avoid the impact of this rule were virtually always met with disapproval by federal appellate courts.  (See generally, Note (1988) 61 Temple L.Rev. 991, 998-1002.)

21.   Where the dismissed juror is the sole holdout for acquittal, and there is no alternate to substitute for the dismissed juror, it is obvious the verdict becomes a foregone conclusion--the remaining 11 jurors will vote to convict.

22.   See Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.

1.   Indeed, it is questionable whether it is even misconduct for jurors to discuss the case during trial.  (See King, Juror Delinquency in Criminal Trials in America, 1796-1996 (1996) 94 Mich.L.Rev. 2673, 2744.)

2.   CALJIC No. 2.02 provides in material part as follows:“The [specific intent] [or] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act.   However, you may not find the defendant guilty of the crime charged ․ unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or][and] [mental state] but (2) cannot be reconciled with any other rational conclusion.“Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other its absence, you must adopt that interpretation which points its absence.   If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

3.   After the voir dire of three jurors (JN7, JN4 and JN1), defense counsel stated:  “I'm objecting to the court going through each and every juror.   I think that what [JN1] and what [JN7] and [JN4] have all said has been consistent with each other, and that is that [JN4's] interpretation of the facts as applied to the law [sic] is different than the other jurors, that since Thursday they have discussed the case, she has answered questions, they have talked about it and at this point they are at an impasse.“What we've got here is this jury is hung.  [JN4] has listened to them, they have gone over and over.   It's gotten to the point where all 11 jurors have ganged up on her in order to try to get her to change her vote.   And that she's been put through all kinds of undue pressure because of that.   That the jury is at a point where they are not benefiting from any further facts or instructions or anything else, and what the court should be doing at this point based on the questions and the answers so far is shifting its focus to determining whether or not this jury is hung as opposed to whether or not there's been any impropriety.”

4.   The fact that the jury returned a verdict after deliberating with the replacement juror for only fifteen minutes renders it hard to believe the jury complied with CALJIC No. 17.51, which in material part instructed jurors that:  “The People and the defendant have the right to a verdict reached only after full participation of the twelve jurors who return the verdict.  [¶] This right may be assured only if you begin your deliberations again from the beginning. [¶] [and that] You must therefore set aside and disregard all past deliberations and begin deliberating anew.   This means that each remaining original juror must set aside and disregard the earlier deliberations as if they had not taken place.”   If there was a failure to deliberate in this case it was not of JN4, but the juror who replaced her.  (See, United States v. Cunningham (N.D.Ill.1996) 916 F.Supp. 817, 820.)

RUVOLO, Associate Justice.

HAERLE, J., concurs.