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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
VIKTOR BARILO,
Defendant and Appellant.
G044803
(Super. Ct. No. RIF138738)
O P I N I O N
Appeal from a judgment of the Superior Court of Riverside County, Ronald L. Taylor, Judge. Reversed and remanded.
Joshua C. Needle for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Viktor Barilo of one count each of attempted lewd conduct with a child (Pen. Code, §§ 288, subd. (a), 664; all further statutory references are to this code), attempted oral copulation of a child (§§ 288a. subd. (c)(1), 664), and arranging a meeting with one believed to be a minor for purposes of engaging in lewd conduct (§ 288.4) and three counts of attempting to use harmful material to seduce a child (§§ 288.2, subd. (a), 664). The court sentenced him to formal probation.
His sole argument on appeal is that there was insufficient evidence for the court to dismiss a juror for misconduct based on alleged failure to follow instructions during deliberations. We agree and reverse.
FACTS AND PROCEDURAL HISTORY
Because the issue deals with jury deliberations we need not recite an extensive summary of the facts. Suffice it to say that sheriff’s investigator Richard Sheldon set up an Internet account for a fictitious 13-year-old girl, “jazzzyjen113,” and went into a chat room hoping to attract adults who prey on children. Defendant, 26 years old and using the screen name mvp24_2000, chatted with jazzzyjen113 nine times in an almost three-month period about topics including oral sex, intercourse, and masturbation with objects. Defendant sent three “streaming videos” of himself masturbating. At an arranged meeting between jazzzyjen113 and defendant, defendant was arrested. The defense was defendant’s belief jazzzyjen113 was an adult.
Deliberations began on an afternoon. Late morning the next day the foreperson sent a note to the judge stating, “We have a juror who has refused to look at evidence, who has been hostile, and who will not take the opportunity to fully present his reasons for acting this way. Because of these reasons, we would like to replace Juror [No.] 7 with the alternate juror.”
The court told counsel he would call the two jurors to the courtroom, ask the foreperson if he sent the note, and then ask Juror No. 7 to explain “his version of what is happening . . . .” Upon the objection of both lawyers to questioning the jurors together the court agreed to speak to each separately. He rejected defense counsel’s suggestion he reinstruct the entire jury, stating that the note referred only to one juror’s conduct.
The foreperson stated Juror No. 7 had “very set opinions” and was “dominat[ing] the process.” He opposed the method of reviewing the evidence but would not offer an alternative. He refused to work through the evidence and would not explain the reasons for his conclusions. From the beginning of deliberations he “was dominating the conversation and had a set opinion.”
Juror No. 7 denied the foreperson’s statements. He said he had not refused to review “anything.” He stated it was apparent from the beginning the other 11 jurors had one opinion and it differed from his. The others were trying to “make me see their point of view . . . .” He thought it would be “naïve” to believe the jurors could change each other’s minds. The judge told him he had instructed the jurors about changing their minds and also that it was not helpful to begin deliberations with a strong opinion. In response to the court’s question Juror No. 7 said he “looked at whatever anyone would show [him]” and then they “talked about it a little bit.”
In response to the court’s question about whether he was explaining why he had taken a certain position, Juror No. 7 said he “tr[ied] to reason with [the others].” Several people often tried to stop him from speaking claiming he was interrupting them and that he was “‘doing all the talking.’” Although he denied doing all the talking he acknowledged that statements “just c[a]me[] out of [him], because . . . pertinent to exactly what they’re saying right at that moment.” But he told the court he was allowing other jurors to air their views and was taking their opinions into account. The court told him he needed to consider the evidence, deliberate, listen the other jurors’ opinions, and state his own.
The court then discussed the matter with counsel, noting that once he had begun talking, Juror No. 7 started talking as well and it was hard to stop him. He saw no basis to excuse Juror No. 7 but it appeared the jury was hung.
The court reinstructed the jurors with CALCRIM No. 101, not to make up their minds until after discussing the case; Evidence Code section 104, the definition of evidence and that that was the only basis for their decision; and CALCRIM No. 3550, selection of a foreperson who is to preside and the duty to deliberate. It then sent the jury back to deliberate.
Late the next morning the court received another note from the jury, signed by the foreperson: “Juror [No.] 7 has not been following the judge’s instructions. He has not been willing to consider all the evidence before making a decision. More to the point, he has raised numerous arguments and objections to the jury instructions themselves while the jury has been reading them and writing them on the wall. Regarding the jury instructions he has both implied and explicitly stated that they are the opinions of the other jurors. Along this line [J]uror [No. ]7 has also implied and explicitly stated his concerns about a conspiracy perpetrated by the prosecution. Additionally, this juror has been repeatedly obstructing the judicial process that the other jurors are attempting to go through. It should be noted that the comments written here are in agreement with the opinions expressed to the foreperson by all 10 other jurors.” (Underscoring omitted.)
The judge stated he would question the foreperson. Defense counsel objected and the court overruled the objection. When the court inquired the foreperson explained he had written an instruction verbatim on the wall and Juror No. 7 stated it was merely the other jurors’ opinion. As to the alleged conspiracy, when the jurors were discussing the credibility of a piece of evidence, Juror No. 7 speculated there had been conspiracies between the prosecution and Sheldon. Juror No. 7 implied Sheldon could have been pretending to be women in other chat rooms. The foreperson reiterated that Juror No. 7 objected to using any method of evaluating the evidence. When the others referred to the instruction setting out the process Juror No. 7 objected to that as well.
The court then questioned Juror No. 7. He denied saying the instructions were the other jurors’ opinions but in explaining stated “you give me instructions, and I interpret [them] . . . [a]nd what comes out of my mouth would be my opinion. It’s just the way of saying that. You can say it’s a fact. You could say it’s the way I interpret it. You could call it an opinion. But . . . I guess they’re taking that and . . . trying to construe it as to something that I don’t know what. . . . I do not mean to sound that way . . . .” He denied objecting to evaluating the evidence but did state that the foreperson wanted him to “comment on everything. And I said, ‘I don’t really need to give my comment on everything. But if you want, I will.’”
The court then asked Juror No. 7 about whether he had speculated certain evidence had been fabricated by Sheldon. Juror No. 7 explained what he had said and then asked if that was “a problem.” The court started to answer that it would be when Juror No. 7 interrupted him. The judge asked him to let him finish and then explained that if Juror No. 7 was stating Sheldon had made up evidence it would be a problem because there was no evidence to support it. Juror No. 7 stated, “I guess you might construe that from what I said. I didn’t mean it that way.”
After hearing argument and taking the matter under submission the court ruled there was juror misconduct and it was not a case of a holdout juror. It cited the facts on which it was relying, which included comments of the foreperson and Juror No. 7. First, Juror No. 7 “did not feel he needed to give his comments to the other jurors.” The court also noted Juror No. 7’s view of jury instructions as opinions. It pointed to the comment it would be “naïve” to believe someone’s opinion could be changed, interpreting this as meaning he had not heeded the instructions. The court also explained Juror No. 7 had interrupted him and talked over him, and “appear[ed] to be a very aggressive person.” Another reason was Juror No. 7’s speculation about evidence. The court then excused Juror No. 7.
DISCUSSION
The trial court may remove a juror for good cause if the juror is unable or unwilling to perform the required duties. (§ 1089.) Good cause includes juror misconduct for failing to deliberate. (People v. Lomax (2010) 49 Cal.4th 530, 589.) Refusal to deliberate includes “expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view[ and] refusing to speak to other jurors . . . .” (People v. Cleveland (2001) 25 Cal.4th 466, 485.)
The facts supporting removal “must appear on the record as a ‘demonstrable reality.’” (People v. Lomax, supra, 49 Cal.4th at p. 589.) This is “a more comprehensive and less deferential review” than the substantial evidence standard. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) Although “we afford deference to the trial court’s factual determinations, based, as they are, on firsthand observations unavailable to us on appeal” (id. at p. 1053) and do not reweigh the evidence, we “must be confident that,” in dismissing a juror, “the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion . . . (id. at pp. 1052, 1053).
The evidence on which the trial court relied to conclude Juror No. 7 was guilty of misconduct is not supported by the record. Rather, it demonstrates Juror No. 7 properly deliberated and should not have been dismissed. This is shown by a review of each of the trial court’s grounds for dismissing him.
One reason on which the court relied was the possibility Juror No. 7 had speculated Sheldon had fabricated evidence. This apparently had to do with two exhibits setting out chats found on defendant’s family computer to purported underage females by someone using the screen name mostvp2000 and not mvp24_2000, the name defendant used in the chats with jazzzyjen113. The exhibits had been introduced, over defense objections on several grounds, as rebuttal evidence after defendant testified he had never chatted with underage females over the Internet. Sheldon testified that in a computer folder entitled “Viktor” he found several subfolders, including one labeled mostmvp2000. Within this were over 3,600 separate folders for each person with whom mostmvp2000 chatted, and 175 of them were with people identifying themselves as girls aged 12 to 17. In overruling defendant’s objections there was no evidence showing mostmvp2000 was defendant’s screen name, the court stated that was for the jury to decide. During closing argument defense counsel heavily attacked Sheldon’s credibility, calling him a liar more than once.
When the court questioned the foreperson about whether Juror No. 7 had claimed Sheldon fabricated evidence, as suggested by his second note, the foreperson explained Juror No. 7 stated Sheldon could have been impersonating minors with whom mostmvp2000 had been chatting.
In response to the court’s questions on this issue, Juror No. 7 first explained, “I’m there to . . . go over as much evidence as everyone in that room wants to” and “I want to make sure everyone is satisfied that we’ve gone over every point of the evidence.” He then described an exchange with “one of the ladies,” who said, “‘Just look at this.’” He and the woman then reviewed the mostmvp2000 chat sessions. Juror No. 7 explained to the court “we were looking at it and . . . I had said, ‘Well, I never heard a girl – young girl talk this way. In fact, this kind of talk, the only time I’ve ever heard anything like that is in a porno movie.’ So she goes, ‘Now look at this[]’ (presumably referring to one of those chat sessions). And we’re looking at it, and I go, ‘You’re right. This is very similar to the one that we had here. . . . I mean . . . I’m talking about the girl’s talk.’ And I said, ‘It almost sounds like the way . . . Sheldon was talking on the . . . earlier things . . . .’”
We see no evidence that Juror No. 7 was speculating about a possible conspiracy involving Sheldon, as the court concluded. In fact, as to the chats with which defendant was charged, Sheldon did pass himself off as a 13-year-old girl. The topic of this discussion is perfectly reasonable within the context of the case and does not constitute misconduct.
Another ground on which the court relied was its finding Juror No. 7 “did not feel he needed to give his comments to the other jurors.” The colloquy described immediately dispels this conclusion. It reveals Juror No. 7 in fact did make comments about the evidence to a fellow juror and thus engaged in deliberations.
Moreover, the foreperson’s explanation supports this conclusion. Commenting on Juror No. 7, he stated that “[h]e discusses his viewpoints, but . . . every time we try to ask him to explain why, . . . he gives a cart blanche [sic] reason.” It is unclear what the foreperson meant in using the term “carte blanche” but his statement reflects Juror No. 7 was explaining his reason for his positions, a proper deliberative posture.
Further, Juror No. 7 explained, “every time someone says something, they want to pin you down on that one thing” and “every time I say something, it’s always getting misconstrued. . . . And I have to explain that, and it goes on and on. And . . . if I . . . get to that point that I’m not willing to talk anymore or listen, then I’ll let you know.” He also said the foreperson wanted him to “comment on everything. And I said, ‘I don’t really need to give my comment on everything. But if you want, I will.’”
This is additional evidence Juror No. 7 deliberated. It may not have been in the most ideal manner, but a juror’s failure to “deliberate well” or use of “faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge.” (People v. Cleveland, supra, 25 Cal.4th at p. 485; see also People v. Bowers (2001) 87 Cal.App.4th 722, 733 [“formal discussion is not necessarily required to reach a decision or conclusion by deliberation”].)
A third reason for dismissing Juror No. 7 was that he had not considered the instructions because of his statement it would be “naïve” to believe someone would change his or her mind. The court interpreted this to mean Juror No. 7 had “not considered the [c]ourt’s instructions” to continue deliberating. But an examination of the full discussion during which Juror No. 7 made that statement illustrates the contrary.
Juror No. 7 said, “I never did refuse [to discuss] anything, like [the foreperson] says. And I’m willing to talk about [the issues] . . . . It is when people come to a certain conclusion, and we’ve all looked at the evidence, we looked at it very well in here. And we could look at it again. But I just say it’s very likely that whoever has made up their minds – and I don’t think I made up my mind . . . any[]more than they have made up their mind[s] . . . . That it’s – you cannot always – it would be kind of naïve to expect you can change somebody else’s mind any[]more that you could expect you could change somebody’s opinions.”
By the time of the first note the jury had been in deliberations for three and a half hours. And at that point the court found there had not been any misconduct “or any reason to excuse [Juror No. 7], based upon his responses. My take on what he said is that it looks like we have a hung jury at 11 to 1.” Thus, the court found Juror No. 7 had been deliberating, despite the “naive” comment. “A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citation.]” (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
A fourth ground for removal was that Juror No. 7 often spoke over the judge and interrupted him and seemed to be very aggressive. Presumably the court believed Juror No. 7 engaged in similar conduct in the jury room, frustrating the process to which the other jurors had agreed. But “the circumstance that a juror disagrees with the majority of the jury as to . . . the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
While no juror may silence the others, as noted above, the jury had reviewed the evidence for over three hours before the first note and reached the 11-to-1 result. A juror who has deliberated may not be dismissed because he “holds his . . . ground.” (People v. Barnwell, supra, 41 Cal.4th at p. 1051.) “[J]urors, without committing misconduct, may disagree during deliberations and may express themselves vigorously and even harshly: ‘[They] can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means.’ [Citations.]” (People v. Engelman (2002) 28 Cal.4th 436, 446.)
The final ground on which the court relied was Juror No. 7’s characterization of the instructions as the other jurors’ opinions. The foreperson explained that the jury had written one unidentified instruction “‘verbatim’” on the walland Juror No. 7 “didn’t accept” it. “[H]is response to us reading the instructions was that he viewed them as unclear . . . and the rest of us as trying to interject opinion. And . . . we were not interjecting opinion, we were reading them verbatim.”
Juror No. 7 explained to the court that the jurors were “going through a process . . . [.] I thought it was a good idea to reduce down to a few sentences the jury instruction, so they can put them up on the wall. So that we can constantly look up there, because he feels by having it up there it helps us keep in mind what our instructions are.” “[W]hat I suggested is that it’s good to put those [instructions] up there.”
Juror No. 7 also stated “everybody was talking about the instructions, and maybe I said that everybody was offering their opinions . . . because basically whenever – you give me instructions, and I interpret [them] . . . [a]nd what comes out of my mouth would be my opinion. It’s just the way of saying that. You can say it’s a fact. You could say it’s the way I interpret it. You could call it an opinion.” When asked by the court if he said the instructions were unclear he denied it but went on to state “I may have said when they were talking, because they, you know, you have like a whole page instruction, they’re going blah, blah, blah . . . .” And I might ask, ‘Well could I just maybe look at it? Or maybe I’m not clear what it is you are talking about right now.’”
While this is not the most articulate explanation of what occurred, one thing is evident. It does not make us “confident” that the record supports the court’s conclusion Juror No. 7 was treating the instructions as merely opinions. (People v. Barnwell, supra, 41 Cal.4th at p. 1053.) Rather, it appears the jurors had a “legitimate disagreement over the meaning to be given certain instructions, interpretations of the law and evidence. [This is] closely akin to the complaints registered in People v. Cleveland, supra, 25 Cal.4th 466, which the Supreme Court found insufficient to justify discharge of a juror. [Citation.]” (People v. Elam (2001) 91 Cal.App.4th 298, 317.)
In sum, the decision to remove Juror No. 7 is not supported by the record “as a ‘demonstrable reality.’” (People v. Lomax, supra, 49 Cal.4th at p. 589.) Especially given the fact the jury was split 11 to 1 with Juror No. 7 the holdout in favor of defendant (see People v. Barber (2002) 102 Cal.App.4th 145, 152 [dismissal of lone holdout reversed where court inadequately inquired about alleged misconduct]), the judgment must be reversed based on his erroneous removal.
DISPOSITION
The judgment is reversed and the case is remanded.
