PEOPLE v. DEJURNETT (1991)

Convicted of armed kidnapping for robbery, two counts (Pen.Code, §§ 209,¹ subd. (b), 12022, subd. (a), 12022, subd. (b)) and armed robbery, two counts (§§ 211, 12022, subd. (a), 12022, subd. (b)), appellant was sentenced to two consecutive life terms plus four years, with two 20–month consecutive terms stayed.   On appeal he claims three errors:  that the trial court, without good cause, replaced a juror with an alternate juror (§ 1089);  that the record on appeal is incomplete due to a partial loss of the reporter's notes (§ 1181, subd. (9));  and that he was given too few custody days credit.   We find no errors and affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

There being no insufficiency of evidence claim, we synopsize the evidence with a view favoring the judgment.  (People v. Woodberry (1970) 10 Cal.App.3d 695, 699, 89 Cal.Rptr. 330;  Buckert v. Briggs (1971) 15 Cal.App.3d 296, 299, 93 Cal.Rptr. 61.)

Near midnight, on July 24, 1986, Sherry Honaker (victim), with her boyfriend Edward Dominguez (victim), drove to her North Hollywood home and parked.   They got out and had just walked to the sidewalk when two Black men approached, pulled guns from their jackets, told the victims not to look at them, and ordered the victims into a white van that had just pulled up.   One of the Black men was tall, about six feet, and had a small, shiny gun.   The other was short and had a big, dark gun.   A third Black man, inside the van, opened the sliding side door and the victims entered.   It was empty and dark.   The victims were told to lie face down and they did.   The short kidnapper-robber straddled Mr. Dominguez, the tall kidnapper-robber straddled Ms. Honaker.   They took the victims' wallet, purse, and jewelry and handed them to the third man, the driver.   The van drove off.

A few minutes later, when the driver threatened the victims, Mr. Dominguez jumped to his feet and struggled with the two kidnapper-robbers.   The driver slammed the brakes, stopped the van, and climbed into the back.   Mr. Dominguez was punched in the face and struck on the head with a gun.   He tried to open the side panel and escape but could not.   Finally, he managed to jump out the front passenger door.   When he then opened the side panel door, intending to rescue his girlfriend, the van started to move.   As it accelerated, Mr. Dominguez had to let go.

Mr. Dominguez, bleeding and with torn clothes, sought help from a man in a nearby car.   The man said he'd follow the van and told Mr. Dominguez to walk to the corner and call the police.

Ms. Honaker had remained on the van floor during the struggle and when the van again drove off, leaving Mr. Dominguez behind, she soon heard one of the robbers say “They are still following us.”   The van made some turns, stopped, and the kidnapper-robbers fled.   After a few moments she looked up and saw California Highway Patrol Officer VanDerMark.

Officer VanDerMark, moments earlier, had just exited the Hollywood Freeway at Regal Place when he was flagged down by a citizen.   He found the parked white van with Ms. Honaker in the back, lying face down.   He radio called LAPD.

The next day, July 25, 1986, a woman who lived near Regal Place, where the van had been abandoned, found Ms. Honaker's wallet and identification.   The money from the wallet was missing.

About a month later, on August 22, 1986, appellant's cousin Dewayne Thomas was arrested.   The next day, August 23, 1986, investigating LAPD detectives Laird and Licata, with Mr. Thomas, went to the Regal Place location.   They searched the surrounding area and found a large, dark B.B. gun and a shiny .25 caliber handgun.   Both were loaded.   The weapons were identified by the victims as looking like those used by the kidnapper-robbers.

On August 26, 1986, appellant was arrested and advised of his Miranda rights.   He waived his Miranda rights and agreed to talk to detectives Laird and Licata.   Appellant initially denied participating in the Dominguez–Honaker kidnap-robberies but then confessed.   Detective Licata, in long hand, recorded the confession.   Appellant was not asked to, and did not, sign the confession.

DISCUSSION

1. Appellant contends the trial court abused its discretion in excusing juror Rendall and replaced him with an alternate juror.

After the jury had deliberated two and a half days the trial court received a note from the jury foreman concerning a problem juror.   In the presence of counsel, the trial court questioned the foreman about the juror and the problem.   The trial court, again with counsel present, then questioned the problem juror, Mr. Rendall.   Thereafter, the trial court excused juror Rendall and replaced him with an alternate juror.

Section 1089 authorizes a court to excuse a juror for good cause.   It provides in relevant part:  “If at any time, whether before or after the final submission of the case to the jury, a juror ․ upon ․ good cause shown to the court is found to be unable to perform his duty ․ the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors.”

Although a trial court has discretion to determine good cause, it is a “limited discretion” (People v. Collins (1976) 17 Cal.3d 687, 696, 131 Cal.Rptr. 782, 552 P.2d 742) and the inability of the excused juror to perform his duty “must appear in the record as a demonstrable reality.”  (Ibid.)

Many cases have considered the exercise of this trial court discretion.   Few have found abuse.

In People v. Goldberg the trial court exercised its discretion not to excuse a juror.   The juror had asked to be excused because she was upset by other jurors discussing a news account of the trial.   The court questioned her, established she could be fair, and retained her.   The Court of Appeal held the trial court had acted within its discretion.  (People v. Goldberg (1984) 161 Cal.App.3d 170, 207 Cal.Rptr. 431.)

People v. Compton (1971) 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537, relied upon by appellant, is not a “good cause” case at all.   There, the trial court excused an alternate juror (based upon his equivocal remarks allegedly made to a barber the previous weekend), without questioning the alternate juror, and then, without further ado, declared a mistrial.  Compton held “[t]here was no ‘legal necessity’ within the meaning of Curry [Curry v. Superior Court (1970) 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345] for the court to discharge the entire jury.”  (Id. 6 Cal.3d at p. 59, 98 Cal.Rptr. 217, 490 P.2d 537.)  Compton, rather than involving “good cause” to excuse a juror and replace him with an alternate juror, instead involved the absence of “legal necessity” to discharge an entire jury and thus subject an accused to double jeopardy.

A rare abuse of discretion was found in People v. Hamilton (1963) 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412.   There, during the penalty phase of a murder trial, a juror informed the trial court that she had read the Penal Code.   Although she stated she would disregard what she had read and follow the court's instructions on the law, the trial court replaced her with an alternate juror.  Hamilton held these facts did not constitute good cause.²

By contrast, good cause to excuse a juror has been found in all the following circumstances:

a juror, father of five daughters, said he would be prejudiced against anyone charged with rape (People v. Harrison (1910) 13 Cal.App. 555, 110 P. 345 [error for trial court not to find good cause] );  juror said “I don't think I would be fair to the prosecution” (People v. Green (1956) 47 Cal.2d 209, 302 P.2d 307);  juror worked in same office as defendant's brother, their desks 25 feet apart (People v. Abbott (1956) 47 Cal.2d 362, 303 P.2d 730);  juror worked with defendant's father for 12 years and lived next door to defendant's sister (People v. Taylor (1961) 189 Cal.App.2d 490, 11 Cal.Rptr. 480);  juror asked to be excused because she was moving out of state (People v. Green (1971) 15 Cal.App.3d 524, 93 Cal.Rptr. 84);  juror upset, can't follow court's instructions (People v. Collins, supra, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742);  juror charged with a felony and two misdemeanors (People v. Farris (1977) 66 Cal.App.3d 376, 136 Cal.Rptr. 45);  for two days a juror tried to barter with other jurors:  he'd vote not guilty regarding one defendant if other jurors would vote guilty regarding the other defendant (People v. Guzman, supra, 66 Cal.App.3d 549, 136 Cal.Rptr. 163 [error for trial court not to find good cause] );  juror absent because he took his wife to an eye doctor (People v. Hall (1979) 95 Cal.App.3d 299, 157 Cal.Rptr. 107);  testimony made juror physically and emotionally ill (People v. Van Houten (1980) 113 Cal.App.3d 280, 170 Cal.Rptr. 189);  in knife assault trial juror failed to disclose during voir dire that she had been victim of attempted rape with a knife (People v. Diaz (1984) 152 Cal.App.3d 926, 200 Cal.Rptr. 77 [error for trial court not to find good cause] );  juror's mind wanders, can't concentrate (Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 202 Cal.Rptr. 284 [a “legal necessity” which justified trial court's declaration of a mistrial] );  juror intimidated by other jurors, not sure she could vote her conscience (People v. Warren (1986) 176 Cal.App.3d 324, 221 Cal.Rptr. 768);  juror wanted to be excused to avoid losing wages (People v. Aikens (1988) 207 Cal.App.3d 209, 254 Cal.Rptr. 30);  over the weekend juror observed defendant join her church (People v. Hecker (1990) 219 Cal.App.3d 1238, 268 Cal.Rptr. 884).

Appellant does not contest the scope or import of these “good cause” cases and even concedes that when “a juror commits actual misconduct, he must be excused.”   Rather, appellant argues that the trial court had no cause to excuse juror Rendall: ³  there was no “showing of bias or inability to perform.”

 In considering this claim we first assess the information provided to the court by the jury foreman.   The in chambers colloquy, with counsel present, began this way:

“THE COURT:  And what is the concern, sir, that leads you to inquire of the Court?

“FOREMAN DAHLSTROM:  Basically, we have had a member of the jury who has been—it is difficult to put—uncooperative, argumentative, doesn't appear to the other 11 jurors to be reasonable or using good abilities to reason.   He seems to argue every point that we bring up.

“He has been outvoted on one particular issue that we have been talking about.   There is a piece of evidence that was not presented that we thought would have been interesting to know, but we outvoted him 11 to 1 to not consider it because that was our instruction.

“And after we outvoted him, he said, well, I feel a lot better just having voiced my opinion.   And we put that out of the way.

“And then later on he made statements as to imply that maybe this was accidentally omitted from the trial, maybe it would cause a mistrial.   He asked anybody in the room if they had a problem with the word ‘mistrial.’

“He has made a number of statements that have given us very uneasy feelings.   He went so far as to say something to the effect that maybe it would serve the policemen right if we kicked this out.   Maybe the next time they wouldn't be so sloppy.   It was those kinds of things that made us feel very uneasy, and that we wouldn't really be able to progress.”

The foreman expanded upon juror Rendall's persistence in bringing up the “piece of evidence that was not presented” and the effect of his persistence on other jurors.

“FOREMAN DAHLSTROM:  Well, referring to that prior issue, we outvoted him 11 to 1 to ignore it.   Later that afternoon he brought it up again and one of the jurors emphatically told him that we would not be considering that anymore.

“The next day, he also brought that up again.   One of the jurors stated to him that if you bring that issue up any more, she said, I am going to come over there and punch you right in the mouth.   She is, I guess, 50 years old, or possibly older, and he is around 30.

“And he made the statement that, well, then I would just have to sue you for assault and battery.   And then he stopped for a second and thought, and he looked up at her and he said, but not before I kick the shit out of you.”

When the trial court asked the foreman if there were any other juror concerns, the foreman said “[t]here have been a number of little instances” and then added the following:

“FOREMAN DAHLSTROM:  Let me think for a second.   I would guess the primary consideration is that it has been hinged on this one piece of evidence, and he has pretty well voiced his opinion that he thinks maybe this would cause it to be thrown out of court, and maybe the lawyers haven't really done their jobs.

“THE COURT:  So his focus is on the absence of evidence;  would that be a fair representation?

“FOREMAN DAHLSTROM:  Yes.   And we voiced—well, our interpretation of the instructions is that we are not to consider that.   And we had a vote as to whether or not to consider that, and we outvoted him 11 to 1.

“And at that point we thought he was fairly satisfied that we had at least gone to that much effort.   But later on that day, and the following day, he brought that up again.   And we kept telling him that we can't consider that.

“But he is insisting that it is probably grounds for a mistrial and that—he made one statement that the Court has put undue difficulty on the jury, and that if there had been more evidence, it would not be such a difficult decision.

“THE COURT:  Thank you, sir.   That about does it then?

“FOREMAN DAHLSTROM:  Yes.”

Distilled, the jury foreman expressed the following concerns about juror Rendall: ⁴  he lacked the ability to reason;  he either lacked the ability or refused to follow the court's instruction to consider only the evidence;  and he was biased against the police and wanted to punish or teach them a lesson by effecting a mistrial.

We need not determine whether or not the information furnished by the foreman to the trial court, by itself, constituted “good cause” to excuse juror Rendall.   The trial court did not act upon that information alone.   Appropriately, although section 1089 fails to prescribe a hearing procedure, the trial court conducted a hearing to determine juror Rendall's competence to remain a juror.  (People v. Burgener (1986) 41 Cal.3d 505, 519, 224 Cal.Rptr. 112, 714 P.2d 1251.)

The in chambers hearing, with counsel present, was protracted.   During it, juror Rendall corroborated, almost word for word, much of what the foreman had said.   For example, juror Rendall's recounting of the near altercation with the female juror was essentially identical to the foreman's description.

“JUROR RENDALL:  My concern is that on Friday, I believed after further evaluation, that I was assaulted by one of the jurors in the chambers unfairly, unjustly, during a round robin sort of expression during deliberation of our feelings on the case.

“And I brought up one issue that bothered me.   One juror, who probably is not remaining nameless at this point, accosted me with a remark that if I didn't shut up about the van, that I would be punched—she would come over and punch me in the mouth.

“At that point I became defensive, at the least.   I don't remember seeing [sic] anything for a few seconds, so I would assume that the shock of it had made me step back, black out, if you will, to a point of disbelief.

“THE COURT:  Sir, when she uttered this, that was in the form of words;  is that correct?

“JUROR RENDALL:  A pointing, and then I was just like—I can't really say how much she meant it, but I can say that I didn't expect it in that type of situation, or else I would not have volunteered.   I would have done something else.

“Whereupon I said, well, if you do that, I will sue you for assault and battery.

“Then, being further pressed, I said, after I kick the shit out of you.”   (Emphasis added.)

Juror Rendall also confirmed his preoccupation with the “piece of evidence that was not presented.”   He told the trial court:  “I didn't mind jury duty up until this point.   But now I feel that my words will have no merit in there when I am, perhaps, one of the only people that feels strongly about some of the lack of evidence in this case․  I seem to be the most vocal advocate.”

When the trial court asked juror Rendall what he was advocating, he responded:

“JUROR RENDALL:  I am advocating a possibility that there could be more evidence, not that there is, and not that we should consider the fact that there is any more evidence.   However, in the pictures of People's 1,⁵ I believe is the van, and on the back of that van says ‘Prints,’ and that was not submitted as evidence, which may or may not be any of our concern.

“However, it is there in color in front of our eyes.”  (Emphasis added.)

These remarks by juror Rendall prompted the following abortive exchange:

“THE COURT:  Sir, do you have any problem understanding the Court's instruction, which is that you are to consider the evidence in this case?

“JUROR RENDALL:  No, sir.

“THE COURT:  If there is no evidence in this case—” (Emphasis added.)

The trial court was apparently prevented from finishing its thought by Juror Rendall's interruption, one that was not entirely coherent.   As the exchange continued, juror Rendall elaborated about the van photograph.

“JUROR RENDALL:  ․ But that picture was staring me—I didn't bring it up either.   Somebody found it.   Somebody said, look, this says ‘Prints' on it and there is bloody finger smudge marks on the doors that could have been mentioned, that hey, these finger smudges weren't printable.   It wasn't even offered as evidence to the State, and apparently there was a mistake and they let the van out too early.   That is only my speculation.   I don't know.

“THE COURT:  That is the reason that the instruction is given, just what you said, sir.” (Emphasis added.)

Even this much of the discussion between the court and juror Rendall makes clear the trial court's concern, viz., that juror Rendall was not following the court's instructions.   The court had instructed the jury “not [to] be swayed by ․ conjecture” (CALJIC No. 1.00 (1979 Rev.)) but juror Rendall stated he had engaged in “speculation.”   The court had instructed the jury that “you must not ․ consider or discuss facts as to which there is no evidence” (CALJIC No. 1.03 (1985)), that “neither side is required to call as witnesses all persons ․ who may appear to have some knowledge of these events, or to produce all objects or documents mentioned or suggested by the evidence” (CALJIC No. 2.11), and that “you are not partisans or advocates ․ but are judges.”  (CALJIC No. 17.41.)   Juror Rendall stated he was considering matters not in evidence, was considering what persons not called as witnesses might have testified to, and was “advocating” rather than judging.

Although we have recounted all of the colloquy between juror Rendall and the trial court, we have not recounted the entirety of the conference.   It concluded with the following unprompted monologue:

“JUROR RENDALL:  And I didn't bring that issue up again about the van to do anything other than sort of further condone the fact that the guns themselves were not really in evidence,⁶ and Eddie ⁷ said the gun was chrome-plated.⁸  There is no chrome-plated .25.⁹  The guns were not attempted to be fin gerprinted ¹⁰ as they were out there in the field for a month, after which the purse was found.¹¹

“If it would have been more conclusive sort of evidence, when the purse was returned, perhaps, speculating, they could have gone out that day.   Why they waited 30 days ¹²  and produced a gun that didn't match,¹³ and lost the BB's,¹⁴ when if Eddie heard the BB's, and he stated he did not under testimony, and that statement came from somebody else ⁵ than [sic] ¹⁶ apparently somebody at the scene because Eddie would have heard the BB's, had there been any in that gun,¹⁷ because BB guns make noise when they are moved around.¹⁸

“Had there not been any BB's in that gun, which detectives testified there were, and the forensics people testified there was not,¹⁹ having the officers place 5–A ²⁰ into the little bag, they could have placed 6–A into a bag, but they did not do that, for whatever reason, beyond my speculation.

“I don't say that the officers are lying.   It is not mine to decide,²¹ and I would not want to infer that on a police—a couple of police officers, who obviously have a fine military record and a judicial and service record to the community.

“However, I feel that some more evidence is out there and they need to find it.   That's my personal feeling.

“I am not saying to free the guy, or that I want an acquittal in this case, because his mother isn't the most convincing, and neither is he.”

We conclude that information from the jury foreman and from the interview of juror Rendall, constituted “good cause” for the discharge of juror Rendall.  (§ 1089.)

The foreman told the trial court that juror Rendall lacked ability to reason, an observation corroborated by the conduct of juror Rendall at the hearing.   (Cf. Mitchell v. Superior Court, supra, 155 Cal.App.3d 624, 202 Cal.Rptr. 284.)   Juror Rendall appeared preoccupied by such matters as “BB noise,” irrelevant to any issue at trial.   The only conceivable significance of “BB noise” was to the credibility of victim Edward Dominguez.   Dominguez testified the reason he jumped up, struggled with his kidnappers, and tried to escape was because he thought the kidnappers were going to kill him.   By contrast, appellant in his confession expressed the conclusion that Dominguez had “heard the BB's” (realized the gun was not dangerous) and for that reason tried to escape.

The credibility of victim Dominguez—“BB noise” or no “BB noise”—was simply never an issue.   The corpus of the crimes could hardly have been, and in fact were not, disputed.   The direct, unimpeached testimony of Mr. Dominguez and that of Sherry Honaker, established it.   All the circumstantial evidence—Mr. Dominguez' bleeding head, torn clothes, missing property;  the abandoned stolen van, the recovered guns, the wallet and identification of victim Honaker found the next day by a woman walking her dog—corroborated the corpus.   As to the only remaining issue, identity, victim Dominguez gave no testimony.

Simply put, “BB noise” was irrelevant—a fact juror Rendall seemed incapable of understanding.

There was also substantial evidence of juror Rendall's disqualifying bias.   Uncontradicted was the foreman's representation that juror Rendall had said “maybe it would serve the policemen right if we kicked this out.   Maybe the next time they wouldn't be so sloppy.”   Juror Rendall, himself, told the trial court, “I feel that some more evidence is out there and they [the police] need to find it.   That's my personal feeling.”  (Cf. People v. Harrison, supra, 13 Cal.App. 555, 110 P. 345;  People v. Green, supra, 47 Cal.2d 209, 302 P.2d 307;  People v. Abbott, supra, 47 Cal.2d 362, 303 P.2d 730;  People v. Taylor, supra, 189 Cal.App.2d 490, 11 Cal.Rptr. 480.)

Additionally, there was substantial evidence juror Rendall could not or would not follow the court's instruction “not to be swayed by conjecture.”   He conjectured that “there was a mistake and they let the van out too early.   That is only my speculation.   I don't know.”   He conjectured that “when the purse was returned, perhaps, speculating, they could have gone out that day.”   And he conjectured that “some more evidence is out there and they need to find it.   That's my personal feeling.”  (See People v. Collins, supra, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742.)

Finally, there was substantial evidence juror Rendall could not or would not follow the court's instruction “to determine the facts ․ from the evidence ” and “not to ․ consider ․ facts as to which there is no evidence.” ²²

As we most generously understand juror Rendall's thesis, it is this:  since someone wrote “Prints” on the rear window of the van,²³ a criminalist may have attempted to lift fingerprints from the van, and if such an attempt was made the result may have been that no prints were obtainable or that prints were obtained but not significant or that prints were obtained and were significant.   Because such evidence was not presented, the jury should not consider the sufficiency of the evidence that was presented, and instead should effect a mistrial.

As is plain, this is not a case of a juror drawing inferences from “the failure to produce evidence which the record shows to exist.”  (People v. Vaughn (1968) 262 Cal.App.2d 42, 68 Cal.Rptr. 366 [at his request defendant was examined by a clinical psychologist but failed to call the psychologist or produce records of the examination];  People v. Crowder (1954) 126 Cal.App.2d 578, 272 P.2d 775 [Defendant testified he had no intent to defraud his wife when he wrote four checks on her account totalling $70;  that he gave her some of the money and bought food for her.   The prosecution called the wife but only asked if she had “consented” to his utterance of the checks];  People v. Beal (1953) 116 Cal.App.2d 475, 254 P.2d 100 [the record showed that the 13–year–old sex victim was examined by a doctor the morning after the alleged crime.   The prosecution failed to call the doctor and failed to suggest he was unavailable].)

In the instant case there was no evidence that a criminalist attempted to obtain fingerprints from the van;  there was no evidence that fingerprints could have been obtained if an attempt had been made to obtain them;  and there was no evidence whose fingerprints might have been obtained if an attempt to obtain them had been made and had been successful.

In such circumstances any inference about van fingerprints could only be based upon prohibited “imagination, speculation or supposition.”  (Dull v. Atchison, T. & S.F. Ry. Co. (1938) 27 Cal.App.2d 473, 476, 81 P.2d 158.   See Marshall v. Parkes (1960) 181 Cal.App.2d 650, 654–655, 5 Cal.Rptr. 657;  People v. Coleman (1972) 28 Cal.App.3d 36, 45, 104 Cal.Rptr. 363 [No evidence prosecution had obtained any fingerprints];  Traxler v. Thompson (1970) 4 Cal.App.3d 278, 286–288, 84 Cal.Rptr. 211;  Olson v. Clifton (1969) 273 Cal.App.2d 359, 366, 78 Cal.Rptr. 296;  People v. Morris (1988) 46 Cal.3d 1, 19–22, 249 Cal.Rptr. 119, 756 P.2d 843;  California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44–50, 221 Cal.Rptr. 171;  Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1588–1592, 234 Cal.Rptr. 889.)

Having concluded there is substantial evidence supporting the trial court's determination of good cause to excuse juror Rendall, we have no occasion to consider prejudice.   Instead, we merely observe that unlike the juror in People v. Hamilton, supra, 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412 who had taken an anti-prosecution position, juror Rendall appeared to favor neither the prosecution nor the defense.   He told the trial court, “I am not saying to free the guy, or that I want an acquittal in this case.”  (Emphasis added.)   As to appellant's only alibi witness, his mother, juror Rendall told the trial court, she “isn't the most convincing.”   As to appellant as a witness, juror Rendall told the trial court, “his mother isn't the most convincing, and neither is he.” ²⁴  (Emphasis added.)

2. Appellant contends the record on appeal is prejudicially incomplete due to a partial loss of the reporter's notes.

“Section 1181, subdivision 9 authorizes a reviewing court to order a new trial ‘because of the loss or destruction, in whole or in substantial part’ of the reporter's notes.  ‘The test is whether in light of all the circumstances it appears that the lost portion is “substantial” in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal.’   A settled statement may provide an adequate substitute.”  (People v. Holloway (1990) 50 Cal.3d 1098, 1116, 269 Cal.Rptr. 530, 790 P.2d 1327.)

The instant record is incomplete.   According to the affidavit of the court reporter, she was told by the Reporters' Assignment Office and County Archives that her trial notes of the July 27, 1987, morning session “cannot be found.”   Thereafter, proceedings were conducted to settle the record on appeal.   Among the participants at these proceedings were appellant, appellant's trial counsel, appellant's counsel on appeal, the prosecutor, and three principal witnesses.   The trial judge had retired and Superior Court Judge James B. Pierce presided.   On June 5, 1990, the parties, and the court, signed a “Stipulated Settled Statement Regarding The Missing Record of July 27, 1987.”   This record summarizes the testimony of those witnesses who testified during the morning of July 27, 1987, and is part of the record on appeal.

Appellant challenges the adequacy of the settled statement only with respect to two witnesses.

 As to one, Fernando Ponce an LAPD composite artist, appellant states:  “the testimony of Honaker (victim) and that of Ponce diverged in several critical aspects” and “[u]nder these circumstances, the omission ․ makes meaningful appellate review impossible.”   Appellant is mistaken.

The settled statement, which appellant's trial counsel “agreed to and accepted,” fully describes this “divergence” between Mr. Ponce and Ms. Honaker.   Appellate review is not impossible.   Moreover, appellant fails to suggest how this “divergence,” whether or not fully described in the settled statement, bears on any claim of error he does make or might make.

We find the settled statement an adequate substitute for the reporter's transcript of Fernando Ponce's testimony.

 As to the other witness, detective Licata, appellant claims the settled statement is inadequate because his trial counsel could not state “with one hundred percent certainty” that the record contained, all of his cross-examination of detective Licata.

Appellant's trial counsel, however, stipulated that detective Licata's two days of testimony at an Evidence Code section 402 hearing “was an accurate representation of the [missing] July 27, 1987 cross-examination.”   Moreover, the cross-examination of detective Licata was repetitive of the cross-examination of detective Laird, all of which testimony was preserved.   Appellant fails to suggest how he might be prejudiced if a cross-examination detail was omitted from the settled statement.   Patently, all cross-examination of detective Licata was before the jury.   They determined his credibility.   To provide an omitted cross-examination detail (even if a detail had been omitted) would not permit an appellate court to determine witness credibility.

We find the settled statement an adequate substitute for the reporter's transcript of the missing part of detective Licata's testimony.

3. Appellant contends he was given too few custody days credit.

 At sentencing, appellant's trial counsel stated appellant “is entitled to 606 days of actual credit, plus an additional 303 days of good time/work time, for a total of 909 days.”   The trial court agreed and so ordered.

On appeal, appellant claims he was entitled to 635 days of actual or custody credit.   The record on appeal fails to support appellant's claim.  “[I]t is the responsibility of the appellant[ ] to provide a record on appeal that clearly demonstrates error.”  (Louis & Diederich, Inc. v. Cambridge European Imports, Inc., supra, 189 Cal.App.3d 1574, 1585, 234 Cal.Rptr. 889.)

DISPOSITION

We affirm the judgment.

I respectfully dissent.

The majority has rendered an opinion which, I fear, would justify removal of each of the “twelve angry men” in the play and movie of the same name, at some time or other during those fictitious deliberations—with the possible exception of Henry Fonda.   In real life deliberations as in the play, charges of “inability to reason”, misinterpretation of jury instructions, and bias for or against parties and witnesses often fly across the jury room.   The only difference is that this time the 11–1 majority moved to eliminate the sole obstacle to the result it was moving toward—the “hold out” juror—and the trial judge allowed it to happen.

The importance of a trial by jury is recognized in Article 1 section 16 of the California Constitution, which provides, in pertinent part:  “Trial by jury is an inviolate right and shall be secured to all․”  It is clearly a right which must be vigorously protected.

It is true neither the California, nor the United States Constitution, however, prohibits the substitution of an alternate for a regular juror, even after deliberations have begun, so long as good cause exists for his discharge, and the court instructs the newly convened jury to begin deliberations anew.   (People v. Collins (1976) 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742.)   “Good cause,” however, exists only when a juror is “unable to perform his duty” (ibid.) not just because his interpretation of the evidence and the court's instructions deviates from the rest of the jurors.

The trial court's discretion to determine whether a particular set of facts demonstrates good cause to discharge has been characterized as “limited,” and the inability to perform juror functions must appear on the record as a “demonstrable reality.”  (People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537.)

The question then becomes:  “Was there sufficient evidence of ‘other good cause shown to the court’ to support the finding of the trial court that the juror was unable to perform his duty?”  (Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 628, 202 Cal.Rptr. 284.)   Given the facts presented here, there is insufficient evidence to support a finding of good cause to discharge this juror.

The majority opinion attempts to imply Rendall lacked an “ability to reason” by picking apart some of his factual statements to the judge and showing they sometimes deviated as to various details from the evidence as reflected in the record.   But I am not sure what this proves.   I suspect that if other members of this same jury had laid their recollections and reasoning processes on the record, it would have been rather easy to find similar discrepancies in their remembrances of the evidence and in the details of their reasoning as well.   As appellate judges we operate with the advantages of hindsight and a verbatim transcript of the evidence.   Jurors, of necessity and by design, must depend on their memories and their common sense, as well as cold logic.

It is no accident this is the first case in California where a juror's disqualification has been justified on his inability to recall or reason properly.   We embark on a dangerous quest when we seek to dismiss a juror on grounds his memory is not perfect or his reasoning ability below average.   It is unfair unless we conduct a like inquiry as to the other members of the same jury to make sure the minority juror's recollections and reasoning are not being singled out because they are different from the others rather than because they are so much weaker as to justify disqualification.   Yet it would be extraordinarily burdensome and disruptive of the jury process if we did engage in that broader inquiry.

The core of the majority's argument lies elsewhere, however, in Rendall's alleged refusal to follow the judge's instructions.   The majority argues Rendall was failing to follow CALJIC 2.11 when he drew inferences favorable to the defendant from the absence of fingerprint evidence taken off the van (or an explanation for that absence).   But was he truly failing to follow that instruction, as it actually reads?   Or was he only failing to follow the instruction as the trial judge and the majority assume it means?

CALJIC 2.11, in its entirety, provides:

“Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events, or to produce all objects or documents mentioned or suggested by the evidence.”

Nowhere does this instruction say it is impermissible to draw an inference from one side's failure to call a witness or produce an object or document.   It merely says neither side is required to call all the witnesses or produce all the objects or documents that might be relevant.   In this, CALJIC 2.11 stands in sharp contrast with many, but not all of the instructions on evidentiary issues which surround it.   Most of these instructions indeed inform the jury what inferences they can and cannot make from certain evidence or facts or how much weight to give such evidence or facts.   But CALJIC 2.11 is merely informational.   It advises the jury of a fact, a legal principle, that the law does not require the parties to introduce every scrap of relevant evidence.   However, it in no way directs jurors to draw—or not draw—any inference from a particular party's failure to produce particular evidence in a particular case.

Consequently, Rendall was not disobeying the plain terms of CALJIC 2.11 by drawing an inference from the prosecution's failure to produce—or explain the absence of—fingerprint analysis of the fingerprints clearly visible in the photograph of the van.   At worst, he was indicating a reluctance to obey the trial judge's evident interpretation of that instruction.   If the trial court wanted to impose an amended version of CALJIC 2.11 on this jury's deliberations it was necessary for it to reinstruct the entire jury and inform all the jurors they are not allowed to draw inferences from the failure of a party to produce evidence, even evidence uniquely in that party's control.   In giving this enhanced version of CALJIC 2.11, however, the trial court would have committed reversible error since it is permissible to draw inferences from one side's failure to produce evidence.

The reason for omission of any such prohibitory language from CALJIC 2.11 is obvious.   Contrary to the People's assertions, a juror indeed may draw an unfavorable inference from the failure to produce evidence or the absence of proof of certain facts.  (People v. Vaughn (1968) 262 Cal.App.2d 42, 54, 68 Cal.Rptr. 366;  People v. Crowder (1954) 126 Cal.App.2d 578, 583, 272 P.2d 775;  People v. Beal (1953) 116 Cal.App.2d 475, 479, 254 P.2d 100.)

The majority attempts to distinguish these cases on grounds they involved inferences from evidence “shown to exist” while in the instant case the evidence was not “shown to exist”.   There are two answers to this.

First, of course, there was evidence “showing” the finger print evidence “exists.”   The majority appears to interpret the phrase “shown to exist” as connoting some sort of metaphysical absolute.   In actuality, evidence of the existence of a given piece of unproduced evidence can range from very strong to relatively weak.   Nothing requires its existence to be proved to a given degree of certainty before its existence is “shown” for purposes of this principle of law.   Common sense, and jurors certainly are not prohibited from exercising common sense, would tell Rendall the prosecution had the capacity and motive to perform fingerprint analysis.   This common sense observation was further supported by the evidence the photograph bore a stamp saying “prints.”   The majority calls this “conjecture” and “speculation,” but these are merely labels which are sometimes affixed to inferences with which one does not agree.

Second, and more important, however, the requirement of proof the evidence exists is not a prerequisite to the inference from its absence.   Jurors are often urged to infer from the absence of evidence both the existence of the evidence and its unfavorability to the side who fails to introduce it.   Indeed this division very recently had such a case before it—People v. Ackerman (1991) 230 Cal.App.3d 1, 282 Cal.Rptr. 312.

Except for who seeks to draw the inference and which side benefits from the inference, the pertinent facts of Ackerman parallel the instant case almost exactly.   In Ackerman, there was evidence blood had been drawn from the defendant shortly after he committed an attempted murder.   The defendant's primary defense was that he had overdosed on Valium which rendered him incapable of forming the mental state required for the crime of first degree, premeditated attempted murder.   In that case it was the defense which had access to the blood samples that might have been scientifically analyzed to support its allegation the defendant had indeed ingested Valium.   However, the defense failed to introduce any evidence about the existence or results of any scientific analysis proving whether and how much Valium the defendant had taken prior to the crime.

In closing argument, the Ackerman prosecutor argued the defendant's failure to introduce any blood test results indicated this blood test had been performed but would show he had not ingested any significant amount of Valium.   That is, he asked the jurors to infer the defense had performed an analysis of defendant's blood and this analysis showed he had not taken Valium, all from the single fact the defense did not introduce a blood test.   Similarly, in the instant case, a juror instead of a prosecutor draws an inference a test was done and was unfavorable to the party in a position to conduct that test from the single fact that party failed to introduce evidence about the results of the test.

One likely explanation for Rendall's obstreperousness in the jury room and his discomfort in responding to the trial judge's questions is that his common sense was in conflict with the judge's evident assumptions about what CALJIC 2.11 instructed was a permissible line of reasoning.   Common sense told him he should be able to draw an inference from the prosecution's failure to introduce evidence of a fingerprint analysis.   Common sense told him the prosecution must have performed such an analysis and if it was favorable to their position would have introduced it at trial.  (Indeed in Ackerman this court held it was “ineffective assistance of counsel” for a defense counsel to fail to have a relatively obscure test conducted on defendant's blood sample or, if that analysis was deemed scientifically impossible, to fail to explain to the jury why it was not performed.   All of this because the unexplained absence of this blood analysis created such a strong possibility the jury would draw an inference the analysis had been performed and proved unfavorable to the defendant.   And, as it turned out, jury declarations indicated many jurors argued this very inference during jury deliberations in that case.  230 Cal.App.3d at –––– – ––––, 282 Cal.Rptr. 312.)

What happened here is that a minority juror was singled out for drawing an inference other jurors commonly draw in California courts.   The rest of the jurors on this particular jury did not draw that inference.   But that did not make it somehow reflective of the minority juror's inability to perform his duty.   Otherwise we probably would have to disqualify a good percentage of the other jurors who sit on cases in this jurisdiction, as the brief glimpse into the Ackerman jury deliberations reveals.

The majority opinion also gives some credence to the jury foreman's accusation the minority juror, Rendall, was “biased” against the police.   Actually, what Rendall said can be more easily interpreted as an argument that law enforcement had not produced enough evidence at this trial to convince him of defendant's guilt beyond a reasonable doubt.   Yes, he is reluctant to exonerate the defendant completely, because he suspects there is evidence the police could find or the prosecutor could produce which would erase reasonable doubt if there were a retrial.   But doubt remains on the evidence before this jury in this trial.   Knowing the others are leaning very strongly in the direction of conviction, Rendall is merely attempting to justify, in admittedly halting, sometimes apparently inconsistent language, his vote for acquittal.   That would produce the result he desires—a hung jury and mistrial.   To find the police's evidence to be insufficient is not the same as being biased against the police.

I am likewise struck with the fact the trial judge failed to inquire of Rendall about his ability to abide by the instructions and the evidence.   On this score, People v. Franklin (1976) 56 Cal.App.3d 18, 128 Cal.Rptr. 94, is particularly instructive.   There, a juror brought before the court related her desire to be disqualified because of a similarity in her and defendant's drug-related experiences.   When questioned by the court, however, as to her apparent bias, the juror additionally expressed her ability to “shut out of her mind her own personal experiences.”   Thus, by her statements on the record indicating her “desire to serve and render a fair decision” (Id. at p. 26, 128 Cal.Rptr. 94) no good cause existed for her discharge.

Likewise, in People v. Goldberg (1984) 161 Cal.App.3d 170, 207 Cal.Rptr. 431, a deliberating juror overheard fellow jurors discussing a news article about the case.   She told the judge that she felt her exposure to this information “prevented her from being fair to both sides.”  (Id. at p. 191, 207 Cal.Rptr. 431.)   Upon further questioning by the judge, however, the juror ultimately disclosed she was, in fact, able to continue with her duties “uninfluenced” by that information.  (Id.)  The court correctly determined that when a juror expresses an “ultimate confidence in (an) ability to judge impartially which appears to be sincere and not the product of any intimidation or badgering, there is no inability to perform the functions of a juror.”

This appears to be the case in the instant action.   Significantly, unlike Franklin and Goldberg, the court never directly asked Rendall whether he could decide the case impartially which would have given him a clear opportunity to establish “there is no inability to perform the functions of a juror”.   Nevertheless, during the course of his hearing before the judge Rendall himself volunteered express statements of impartiality that he was able to fairly adjudge the evidence and follow instructions.  “With such statements on the record, the court's discretion was extremely diminished to justify ․ disqualification․”  (People v. Franklin, supra, 56 Cal.App.3d 18, 26, 128 Cal.Rptr. 94.)

The fact a juror is leaning toward voting for acquittal or, knowing the realities of the deliberations, is leaning toward a vote which will result in a hung jury has never been deemed grounds for replacing that juror with an alternate.   It is quite natural for the eleven other jurors to construe those leanings as “bias” against the police, or “inability to reason,” or “inability to follow the court's instructions.”   But there is no excuse for the trial court to do the same.

I recognize it is tempting to replace a juror who so clearly indicates a predisposition to “hang” the jury, and thus “waste” days or weeks the judge spent presiding over the trial.   But for the reasons expressed above, I believe the trial court lacked legitimate grounds to dismiss this juror in this case.   Moreover, the majority opinion creates a dangerous precedent for future cases in which the majority of a jury brings a potential “hold out” juror before the court to analyze the soundness of the potential “hold out's” logic and his or her interpretation of instructions.¹  These are perilous areas of inquiry, as this case amply illustrates.

For these reasons, I am compelled to dissent.

FOOTNOTES

1.   Unless otherwise noted, all statutory references are to the Penal Code.

2.   Hamilton 's view that “[s]ection 1089 does not provide that misconduct of a juror shall be a ground for substituting an alternate” (id. at p. 127, 32 Cal.Rptr. 4, 383 P.2d 412) has been undercut by People v. Collins, supra, 17 Cal.3d 687, 692, 131 Cal.Rptr. 782, 552 P.2d 742.  (See People v. Guzman (1977) 66 Cal.App.3d 549, 559, 136 Cal.Rptr. 163.)

3.   In her appellate brief counsel for appellant states:  “․ the court ․ removed him [juror Rendall] from the jury because he was being ‘uncooperative,’ i.e., he did not agree with the other jurors.”   No support for this aspersion on the trial court's motivation is cited.   Our careful review of the record has found none.

4.   The trial court, after an unreported discussion with counsel, had the foreman return to chambers and identify the problem juror.

5.   The reference is to a large, white cardboard exhibit, People's # # # 4, on which nine photographs (numbered 1, 2, 3, 5, 6, 7, 8, 9, and 11) are mounted.   Photograph 7b 1 depicts the back of the subject van.

6.   The victims described two guns.   A small, shiny gun used by the tall Black man and a large, dark gun used by the short Black man.   People's exhibit 5, admitted in evidence, was a (small) .25 caliber gun.   Except for its grip, not visible when held, it was shiny.   People's exhibit 6, admitted in evidence, was a large, dark BB gun.   Both victims identified the guns.

7.   Victim Edward Dominguez.

8.   Edward Dominguez testified one gun was “a shiny silver” and later, that it was “plated silver and it looked shiny” but he couldn't see the grip.  (Ibid.)

9.   There was no evidence that “there is no chrome-plated .25.”

10.   Peggy Fiderio, a criminalist for the Los Angeles Police Department, testified she attempted to obtain fingerprints from both the .25 caliber weapon and the BB gun but was unable to do so.  [Engrossed settled statement 5.]

11.   Victim Sherry Honaker's wallet, diary, etc. were found one day after the kidnapping-robbery and almost a month before the guns were recovered.

12.   There was no evidence the police “waited 30 days” to search for the kidnap weapons.   There was no evidence that until Dewayne Thomas was arrested (on August 22, 1986, almost a month after the crimes) the police had any information concerning the whereabouts of the subject weapons.   There was evidence, the testimony of detective Laird, that on August 23, 1986, detectives Laird and Licata with Dewayne Thomas (“another arrestee”) went to a hilly, brush covered area near where the van was abandoned and then recovered the two subject weapons.   The BB gun was lying in an “overgrown area” and the .25 caliber weapon was on top of a hillside in an ivy plant.

13.   There was no evidence “a gun ․ didn't match.”   Both victims identified the subject weapons.   Neither weapon had been fired during the kidnap-robberies, hence no ballistics evidence was relevant or offered.

14.   There was no evidence that the BB's were lost.   Detective Laird testified that there were some BB's in the gun when it was recovered but they were not booked into evidence.   He thought they were “thrown away.”

15.   In his confession, People's exhibit # 14, appellant stated to detectives Laird and Licata that “I was moving the BB gun and the BB's made noise, the man heard the BB's and he grabbed me and the gun, we were fighting and Dewayne came and helped me․”  Victim Edward Dominguez did not testify he heard any sound of BB's and appellant testified he did not participate in the kidnap-robberies and did not confess to having done so.

16.   “Other than” appearsto be a verbal error.

17.   The only evidencewas that there were BB's in the gun.   Detective Laird testified that when the gun was recovered there were BB's in it.   Appellant's confession stated the BB's in his gun “made noise.”   There was no other pertinent evidence.

18.   Except for appellant's confession, there was no evidence concerning the noise BB guns make.   Victim Edward Dominguez—at the time of any such “BB noise”—was being kidnapped and robbed, face down on the corrugated rear floor of a moving van occupied by five people.

19.   The pertinent criminalist, Peggy Fiderio, did not testify to the condition of the BB gun when it was recovered.   It was unloaded when she saw it because detective Laird testified the BB's were not booked into evidence.

20.   Exhibit 5–A contained the bullets removed from the .25 caliber weapon.

21.   Of course it was “his to decide.”   The court had instructed the jury “You are the sole judges of the believability of a witness.”   (CALJIC No. 2.20) (1980 Rev.) and the entire defense was the officers “are lying”:  appellant did not confess to the officers.

22.   Juror Rendall's assertion he could follow court instructions does not preclude the presence of substantial evidence that he could not.   (People v. Abbott, supra, 47 Cal.2d 362, 303 P.2d 730;  People v. Farris, supra, 66 Cal.App.3d 376, 136 Cal.Rptr. 45;  People v. Diaz, supra, 152 Cal.App.3d 926, 932, 200 Cal.Rptr. 77.)

23.   Photo # 1 of People's exhibit # 4 depicts the rear of a white van with two large windows.   On the left window the word “Prints,” the date “7/24/86,” “LAPD,” “211,” and two signatures all appear.   There is no apparent blood on that window or on any part of the van depicted in that photograph.   We have examined these exhibits with care:  there are no “fingerprints clearly visible,” as the dissent represents.  (Dissent at pp. 874, 875.)   Other photographs in exhibit 4 do appear to show blood (e.g., # 6, # 8, # 11) but not fingerprints.

24.   The dissent misleadingly implies this is an 11–1 holdout juror case.   It is not.   Prior to juror Rendall being excused, so far as the record shows, only one vote was taken.   That vote did not concern guilt or innocence.   It only concerned what the jury should or should not discuss.

1.   Contrary to the majority opinion (see maj. opn., p. 26, fn. 24), I am not implying the jury had voted already on the ultimate issue of guilt and divided 11–1 on that issue, although the record is not crystal clear the jurors had not so voted.   However, at a minimum it is apparent from the record of this proceeding which way the wind was blowing in the deliberations.   Rendall was under attack from his fellow jurors, in the case of one juror literally as well as figuratively, for drawing inferences which were favorable to the defendant and indicating an inclination to vote for acquittal.   The absence of a formal vote is a technicality if the other jurors have stated their views favoring conviction or if they harbor those views.   The jury could still be lined up 11–1 for conviction with Rendall as the lone “hold-out.”   Assuming a formal vote had not taken place as yet, there remains the distinct possibility the majority was asking the judge to remove the only obstacle to unanimity before taking that vote.   Indeed this is the most likely inference from the record.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.