People v. Barton

Filed 10/26/20; Opinion on transfer from Supreme Court



                           CERTIFIED FOR PUBLICATION

            COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                          D072639

       Plaintiff and Respondent,

       v.                                            (Super. Ct. No. SCN331782)

JEFFREY SCOTT BARTON,

       Defendant and Appellant.


       APPEAL from a judgment of the Superior Court of San Diego County,
Harry M. Elias, Judge. Reversed.


       Robert E. Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
       Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys
General, for Plaintiff and Respondent.
      A jury convicted Jeffrey Scott Barton of five counts of forcible oral

copulation (Pen. Code, § 288a, subd. (c)(2)) 1 and one count of forcible sodomy
(§ 286, subd. (c)(2)(A)). However, the jury reached its verdict only after the
trial court discharged a holdout juror, Juror No. 12, after it found she was
refusing to deliberate. Thereafter, the trial court sentenced Barton to a
prison term of 48 years.
      Barton appeals, contending, inter alia, that the trial court abused its
discretion by discharging Juror No. 12 on the basis that she was refusing to
deliberate. Barton contends that the other jurors’ testimony demonstrates
only that Juror No. 12 disagreed with the other jurors, who found her to be
unfriendly and unable to offer persuasive explanations for her opinion, not
that she was unable or unwilling to deliberate. We agree. Under the
heightened standard of review that applies to a trial court’s decision to
discharge a holdout juror for refusing to deliberate, we conclude the trial
court’s decision to discharge Juror No. 12 is not manifestly supported by
evidence. Accordingly, we need not address Barton’s other contentions on
appeal, other than his challenge to the sufficiency of the evidence, and
reverse the judgment.
              FACTUAL AND PROCEDURAL BACKGROUND
      Given our discussion on appeal is focused on the discharge of Juror No.
12, we provide only a limited review of the underlying trial. We will provide
additional factual background in our discussion of Barton’s challenge to the
sufficiency of the evidence.




1     Penal Code section 288a was renumbered to section 287 after Barton’s
conviction. All further statutory references are to the Penal Code unless
otherwise specified.

                                        2
      In 1999, John Doe enrolled at the Army Navy Academy (Academy), a
military boarding school in Carlsbad, California. At that time, Doe was 14
years old. Doe lived on campus in a cottage that housed multiple “cadets.”
Barton also lived on campus and was employed as the Director of Summer
Programs. He was heavily involved with the cadets in various activities.
      Barton was John Doe’s homeroom teacher. After Doe enrolled, he and
Barton soon developed a close relationship outside the classroom. In 2000,
after an Academy staff member became suspicious about the relationship
between Barton and Doe, Doe was interviewed but denied any molestation or
inappropriate behavior by Barton. Around the same time, John Doe told his
grandparents that Barton was abusing and molesting him. His grandparents
did not take any action or report Doe’s claim, telling him they thought he was
falsely accusing Barton to get out of attending the Academy.
      In 2013, over a decade after he left the Academy, Doe told his mother
for the first time that Barton had molested him years earlier when he was a
cadet. His mother called the police the next day. During an interview with
the police, and then later at trial, Doe detailed multiple incidents in which
Barton committed lewd acts and performed oral copulation and sodomy.
Subsequent investigation discovered two additional victims in other states
who testified that Barton molested them as children in the years before
Barton met John Doe.
      Based on those allegations, Barton was charged with 20 counts of
various sexual crimes against three victims, Doe and two other boys at the
Academy. At Barton’s first trial, the jury found him not guilty of all but one
of the counts arising from his alleged conduct regarding the other victims,
and was unable to reach a verdict as to the remaining count and all the
counts involving John Doe.


                                       3
      The People then filed an amended indictment charging Barton with 10
counts of forcible oral copulation (§ 288a, subd. (c)(2)) and one count of
sodomy by force (§ 286, subd. (c)(2)(A)), all involving John Doe. The
indictment alleged that it was filed within one year of a report by the victim
to law enforcement claiming forcible oral copulation and forcible sodomy
when the victim was under the age of 18, thereby satisfying the statute of
limitations. (§ 803, subd. (f).)
      At the second trial, the prosecution’s case was largely premised on John
Doe’s testimony bolstered by his earlier statements to law enforcement. In
his defense, Barton presented multiple witnesses who testified they never
saw Barton act inappropriately toward his students. Barton was also able to
highlight many inconsistencies and impossibilities in John Doe’s testimony
and statements regarding Barton’s conduct. John Doe also acknowledged
that he filed a lawsuit against the Academy premised on Barton’s conduct
and was seeking $1.79 million in damages.
      In closing argument, Barton’s counsel focused on contesting Doe’s
credibility. She argued that Doe’s own grandparents did not believe him.
She asserted that Doe concocted the story simply to obtain a “substantial
amount of money” via his lawsuit.
      Jury deliberations began on Thursday, May 25, but lasted only 16
minutes before recessing in the evening for the weekend. Deliberations
resumed on Tuesday, May 30, when the jury deliberated for over five hours.
      Early the next morning, after almost an additional hour of
deliberations, the court received a note from Juror No. 6, asking: “Is it
possible to proceed with an alternate juror if we suspect that a single juror is
trying to nullify the rest of the jurors?”




                                         4
       The parties agreed that the court should conduct an inquiry. The court
first questioned Juror No. 6, who indicated that Juror No. 12 was telling the
other jurors that she would not change her opinion on Barton’s guilt and was
not engaging in further discussions. The court then allowed counsel to
question Juror No. 6. Juror No. 6 clarified that Juror No. 12 would answer
direct questions but was firm in her opinion. When questioned further, Juror
No. 6 revealed that Juror No. 12 maintained that she did not believe John
Doe.
       The court and counsel then questioned Juror No. 12. She told the court
she was not trying to nullify the jury’s verdict and was willing to engage in
discussion. Juror No. 12 indicated she felt strongly about the evidence and
disagreed with the other jurors, but had listened to the others discuss the
evidence. Based on this testimony, the court found that Juror No. 12 was not
refusing to deliberate and no further questioning of the jury was necessary.
The court instructed all the jurors to continue to deliberate.
       The next morning, the court received another note from the jury, this
time stating that “Juror No. 12 refuses to deliberate.” The court indicated it
would question all the jurors and allow counsel to ask questions.
       The court called each juror individually for questioning in descending
order. Juror No. 11 believed that Juror No. 12 had made up her mind “right
from the get-go.” After the court’s initial questioning the day before, Juror
No. 12 returned to the deliberations and asked to hear two of the transcripts
from trial. Toward the end of the second transcript, Juror No. 11 observed
Juror No. 12 yawning and believed “she had tuned out.” Juror No. 11
testified that Juror No. 12 would not talk “freely, openly” about her feelings
and was either unwilling or unable to answer questions posed by the other 11
jurors. During deliberations, Juror No. 12 would share her opinion with the


                                       5
other jurors, but would not engage in further discussion. Juror No. 11 faulted
Juror No. 12 with not being part of the “small talk” during breaks in the trial
and that it seemed unusual that she was not part of the group.
      Juror No. 10 agreed that Juror No. 12 was refusing to deliberate. Juror
No. 12 initially appeared to be considering other opinions, but failed to give
the other jurors reasons for her own opinions. Juror No. 10 further
explained: “I think she honestly believes that she’s sharing everything there
is to share. But I don’t think the rest of us feel that she is.” Juror No. 10
explained that “Juror No. 12 has stated her opinion multiple times—but
that’s where it goes. But it’s an opinion about one thing.” Explaining
further, Juror No. 10 stated that the other jurors communicated to Juror No.
12 that “[w]e want to know why you are thinking this because everybody else
has said why they are thinking what they are thinking. And she maintains
that she shouldn’t have to defend her opinion.” During deliberations, Juror
No. 10 brought a document to Juror No. 12 to discuss, but Juror No. 12
refused to look at the document and said Juror No. 10 was being aggressive
by standing over her. The other jurors continued to ask Juror No. 12 to
elaborate on or clarify her position, but Juror No. 12 would respond by
declaring she was “not on trial.” Juror No. 10 explained that Juror No. 12
would answer “as if she feels she clarified her position . . . but it’s still . . . not
clear.” The other jurors were “unsatisfied with her response.” Juror No. 10
observed that Juror No. 12 sat apart from the other jurors at breaks during
trial and, once deliberations began, Juror No. 12 did not laugh and joke with
other jurors about “random” topics and did not “want to participate in
friendly conversations.”
      Juror No. 9 agreed that Juror No. 12 was refusing to deliberate and
stated that whereas “eleven of us have very carefully and systematically and


                                           6
honestly gone through the evidence in a very logical, progressive way, . . .
[Juror No. 12] will not express why she believes the way she does, as we all
have.” Juror No. 9 acknowledged that Juror No. 12 would answer questions,
but “[s]he kept saying the same thing.” As deliberations progressed, Juror
No. 12 would respond to questions by saying “ ‘I’ve decided. I’ve made up my
mind. I’m not going to change my mind. And I have nothing more to add.’ ”
Juror No. 9 acknowledged Juror No. 12 went through her notes and the
printed evidence “pretty well” at the start of deliberations, but “she
commented very little on it.” Juror No. 9 also expressed that Juror No. 12
was not very open to “chitchat.”
      Juror No. 8 agreed that Juror No. 12 was refusing to deliberate. Juror
No. 8 explained that Juror No. 12 refused to give information to sway the
other jurors to her point of view. Juror No. 12 was responding to questions
from the other jurors, but Juror No. 8 believed the answers were
nonresponsive to the questions. The other jurors were growing exasperated
with Juror No. 12’s repeated responses, telling her that “you’ve said this over
and over again. We need to hear something different. We need to hear . . .
why you’re feeling this way.” Juror No. 8 explained that during trial, Juror
No. 12 would not talk with the other jurors and would physically separate
herself during “breaks or in the deliberation room.”
      Juror No. 7 agreed Juror No. 12 was not deliberating. Juror No. 7
believed that Juror No. 12 had already made up her mind at the start of
deliberations. Juror No. 7 further explained that Juror No. 12 was not
participating in “our in-depth conversations” and had said “[a] handful of
words, and that’s it.” Juror No. 12 would answer questions, but Juror No. 7
believed she was “not acting like a reasonable person.” Explaining further,
Juror No. 7 stated that although Juror No. 12 would share her opinion,


                                        7
“[s]he’s not giving us enough of an opinion to support anything.” Juror No. 7
denied that Juror No. 12 was physically separating herself during
deliberations, noting that she was sitting at the head of the table. However,
Juror No. 12 separated herself outside the jury room. Juror No. 7 faulted
Juror No. 12 with not being friendly during trial and sitting off to the side
instead of “joking and talking about life.”
      Juror No. 5 agreed that Juror No. 12 was refusing to deliberate. Juror
No. 5 indicated Juror No. 12 was looking at the evidence and verbally
responding to questions, but failed to answer the questions posed. Juror No.
12 would offer her opinion, but provide “no backup for the opinion.” Juror No.
5 noted that Juror No. 12 separated herself during the trial.
      Juror No. 4 likewise agreed Juror No. 12 was not deliberating because
“[s]he gives her opinion, but she doesn’t want to explain why. And it’s
difficult to have a discussion about it if she won’t explain why.” Juror No. 4
stated that when deliberations started, Juror No. 12 “did give some—a
reason. And when we tried to dig deeper into those reasonings or give our
reasonings for another view, that’s when she started shutting down and not
wanting to discuss it further.” Revealing Juror No. 12’s reasoning, Juror No.
4 suggested that “she isn’t believing one part of evidence to be true, she’s
discrediting the entire witness . . . .” Juror No. 4 stated that at the start of
deliberations, Juror No. 12 “right away, she gave her opinion. And it hasn’t
changed.” Juror No. 4 acknowledged that Juror No. 12 verbally responded to
questions, but agreed with the characterization that her answers were “not to
the satisfaction of the eleven.” Like the other jurors, Juror No. 4 noticed that
Juror No. 12 “wasn’t involving herself in on our breaks or at lunch.”
      Juror No. 3 did not believe Juror No. 12 was deliberating because the
other jurors had been trying to figure out Juror No. 12’s point of view “[b]ut


                                         8
she won’t talk about it.” Juror No. 3 agreed that when deliberations began,
there was initially more of a dialogue with Juror No. 12 explaining her
position. However, Juror No. 3 opined that Juror No. 12 had an opinion from
the very beginning and was not willing to consider other viewpoints. Juror
No. 3 acknowledged that Juror No. 12 looked at the physical evidence,
listened to testimony, and consulted her notes. Although Juror No. 12
remained at the table during deliberations, she did not participate in the
jurors’ discussion. Juror No. 3 expressed frustration because Juror No. 12
had an “opinion with no facts or evidence behind it.”
      Juror No. 2 told the court that Juror No. 12 was “definitely” refusing to
deliberate, with “no exchange of information.” Juror No. 2 believed Juror No.
12 formed her opinion at the start of deliberations. Juror No. 12 would
review the evidence and respond to questions, but “would not answer a yes-
or-no question with a yes or no, ever.” Juror No. 12 never stated that she was
refusing to deliberate or to consider the law. While the other jurors were
discussing the evidence, Juror No. 12 would “roll her eyes and look away.”
However, Juror No. 2 believed that Juror No. 12 was listening to the evidence
and “engaged in that process.” When discussing her own opinion, Juror No.
12 “wouldn’t use any evidence to back up what she says.” Juror No. 2 also
noticed that Juror No. 12 distanced herself from the others throughout the
trial and would not say hello or chat with the other jurors.
      Juror No. 1 had the impression that Juror No. 12 was refusing to
deliberate. Juror No. 1 further revealed Juror No. 12’s opinion, explaining
that “[i]t’s easy [for Juror No. 12] to say, ‘I don’t believe John Doe.’ But I can
also then say, that I would ask, ‘What about his testimony bothers you?’ [¶]
[Juror No. 12] absolutely will not answer the question. I mean totally will
not answer.” Juror No. 1 elaborated by stating that “[t]he purpose of


                                         9
virtually every question that was directed to her was an attempt to get her to
present any factual tidbit that caused her to take the position she was taking.
In other words, “I don’t believe John Doe.” When asked to explain her
opinion, Juror No. 12 would “go back and repeat her same words, “ ‘I just
don’t believe him.’ ” During a preliminary vote at the start of deliberations,
Juror No. 12 told the other jurors that she was intending to vote “not guilty.”
Juror No. 1 did not believe Juror No. 12 considered the other jurors’
viewpoints.
      Juror No. 6 returned for questioning and still agreed Juror No. 12 was
refusing to deliberate. On the last morning of deliberations, Juror No. 12 was
refusing to deliberate further and, when questioned, affirmed that her
opinion was set and that she was “ ‘going to vote the same way on everything
no matter what evidence [the jurors] discuss.’ ” When asked, Juror No. 12
would refuse to list the evidence supporting her opinion. Juror No. 6 told the
court that Juror No. 12 resisted making “small talk” during breaks in the
trial and remained distant during deliberations.
      The court concluded its inquiry by questioning Juror No. 12 and
allowing counsel to ask questions. Juror No. 12 denied that she was refusing
to deliberate and explained that “I am participating, I am deliberating, I am
stating my side. I have been stating my side. I continue to state my side.
Their side is opposite. That’s the problem.” Juror No. 12 stated that she was
considering the evidence, but simply had a different view than the other
jurors. She stated that she was considering the law and all the evidence
when deliberating and had, to the best of her ability, answered the other
jurors’ questions. Juror No. 12 opined that the deliberation issues arose
because she did not agree with the other jurors, who “believe that if they get
an alternate, then that [alternate] will side with their side.” Juror No. 12


                                       10
acknowledged that she distanced herself from the other jurors during breaks
in the trial, but only did so to avoid talking about the case. Juror No. 12
expressed that she thought she had engaged in the deliberative process, had
initially explained her position, and had considered the viewpoints of the
other jurors.
      After hearing argument from counsel, the court made a series of
findings based on its review of the jurors’ testimony. The court noted that the
jurors consistently described a process in which they all attempted to engage
Juror No. 12 in discussing the case. Finding certain jurors more credible
than others on different topics, but ultimately finding them all credible, the
court accepted their testimony that Juror No. 12 did not have a fixed
conclusion before the start of deliberations, but rather “started the process
the same as everybody else did at the very beginning.” However, the court
found that Juror No. 12 quickly reached a fixed conclusion “at or near the
beginning of deliberations.” The court found Juror No. 12 refused to speak to
the other jurors and, while unable to separate physically from the remaining
jurors given the small size of the jury room, Juror No. 12 created a “sort of an
emotional distance” from the other jurors. Based on these findings, the court
concluded Juror No. 12 was refusing to deliberate and discharged her
pursuant to section 1089. Barton’s counsel immediately moved for a mistrial,
which the court summarily denied.
      The court replaced Juror No. 12 with an alternate juror. After less
than five hours of deliberations, the newly constituted jury found Barton
guilty of six counts and not guilty of five counts. Thereafter, the court
sentenced Barton to consecutive terms of eight years on each of the six
counts, for a total determinate prison term of 48 years. Barton filed a timely
appeal.


                                       11
                                 DISCUSSION
                                         I
                       DISCHARGE OF JUROR NO. 12
      Barton’s first argument on appeal challenges the trial court’s discharge
of Juror No. 12. “[S]ection 1089 sets forth the procedure for removing a
sitting juror.” (People v. Boyette (2002) 

29 Cal. 4th 381

, 462.) It provides, in
relevant part, as follows: “If 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 to be unable to perform his or her
duty, or if a juror requests a discharge and good cause appears therefor, the
court may order the juror to be discharged . . . .” (§ 1089.) Good cause exists
to discharge a juror when the juror loses his or her ability to render a fair and
impartial verdict based on the evidence presented at trial. (People v. Warren
(1986) 

176 Cal. App. 3d 324

, 327.)
      In most circumstances, section 1089 is applied to remove a juror “who
becomes physically or emotionally unable to continue to serve as a juror due
to illness or other circumstances.” (People v. Cleveland (2001) 

25 Cal. 4th 466

,
474 (Cleveland).) However, section 1089 also has been applied “to permit the
removal of a juror who refuses to deliberate, on the theory that such a juror is
‘unable to perform his duty.’ ” (Id. at p. 475.)
      In Cleveland, the Supreme Court urged that “caution must be
exercised” in removing a juror for refusing to deliberate “to protect the
sanctity of jury deliberations.” 

(Cleveland, supra

, 25 Cal.4th at p. 475.)
Later, in People v. Armstrong (2016) 

1 Cal. 5th 432

(Armstrong), the Supreme
Court reminded trial courts “that the removal of a seated juror for failing to
deliberate is a serious matter that implicates a defendant’s state and federal
constitutional right to a unanimous decision by the jury.” (Id. at p. 454.)


                                        12
      Given this need for caution, both the trial court’s discretion and our
review of the trial court’s decision is subject to a heightened standard.
“Removing a juror is, of course, a serious matter . . . . While a trial court has
broad discretion to remove a juror for cause, it should exercise that discretion
with great care.” (People v. Barnwell (2007) 

41 Cal. 4th 1038

, 1052, fn.
omitted (Barnwell).) An appellate court’s “review of the decision to remove a
seated juror is not conducted under the typical abuse of discretion standard,
but rather under the ‘demonstrable reality’ test.” (People v. Fuiava (2012) 

53 Cal. 4th 622

, 711 (Fuiava); see also 

Armstrong, supra

, 1 Cal.5th at pp. 453-
454.) Our Supreme Court explained in Fuiava: “The typical abuse of
discretion standard involves an analysis of whether the trial court’s decision
is supported by ‘ “substantial evidence,” ’ and ‘has been characterized as a
“deferential” standard.’ ” (Fuiava, at p. 711.) “Even when there is a
significant amount of countervailing evidence, the testimony of a single
witness that satisfies the standard is sufficient to uphold the finding.” (Ibid.)
In contrast, “ ‘[t]he demonstrable reality test entails a more comprehensive
and less deferential review. It requires a showing that the court as a trier of
fact did rely on evidence that, in light of the entire record, supports its
conclusion that [good cause for removing the juror] was established.’ ” (Id. at
p. 712.) Under the demonstrable reality standard, reviewing courts “must be
confident that the trial court’s conclusion is manifestly supported by evidence
on which the court actually relied.” (Barnwell, at p. 1053.) In reaching that
conclusion, this court considers “not just the evidence itself, but also the
record of reasons the court provides.” (Ibid.) The “heightened” and “more
stringent” demonstrable reality standard “more fully reflects an appellate
court’s obligation to protect a defendant’s fundamental rights to due process




                                        13
and to a fair trial by an unbiased jury.” (Id. at p. 1052; see also People v.
Allen and Johnson (2011) 

53 Cal. 4th 60

, 71 (Allen).)
      “As we have consistently cautioned, however, even under the
demonstrable reality standard the reviewing court does not reweigh the
persuasive value of the evidence.” 

(Fuiava, supra

, 53 Cal.4th at p. 714, italics
added.) “[E]ven when there is conflicting evidence . . . an appellate court
must recognize that it is for the trial court to ‘weigh the credibility of those
testifying and draw upon its own observations of the jurors throughout the
proceedings,’ and the reviewing court must ‘defer to factual determinations
based on these assessments.’ ” (Ibid.) Accordingly, reviewing courts must
defer to the trial court’s assessments of a juror’s credibility or mental and
physical conditions, “based ‘on firsthand observations unavailable to us on
appeal.’ ” (People v. Powell (2018) 

6 Cal. 5th 136

, 156 [mental and physical
conditions]; 

Barnwell, supra

, 41 Cal.4th at p. 1053 [credibility].)
      Here, the trial court discharged Juror No. 12 after following the
procedures set forth by the Supreme Court in Cleveland. Initially, a court
should conduct a reasonable inquiry into allegations of misconduct “ ‘where
the court possesses information which, if proven to be true, would constitute
“good cause” to doubt a juror’s ability to perform his duties and would justify
his removal from the case.’ ” 

(Cleveland, supra

, 25 Cal.4th at p. 478.) Before
conducting such an inquiry, “it often is appropriate for a trial court that
questions whether all of the jurors are participating in deliberations to
reinstruct the jurors regarding their duty to deliberate and to permit the jury
to continue deliberations before making further inquiries that could intrude
upon the sanctity of deliberations. It also is clear . . . that when reinstruction
does not resolve the problem and the court is on notice that there may be




                                        14
grounds to discharge a juror during deliberations, it must conduct ‘whatever
inquiry is reasonably necessary to determine’ whether such grounds exist.”
(Id. at p. 480.)
      If the court proceeds to conduct a further inquiry, it “must take care in
inquiring into the circumstances that give rise to a request that a juror be
discharged, or an allegation that a juror is refusing to deliberate, lest the
sanctity of jury deliberations too readily be undermined.” 

(Cleveland, supra

,
25 Cal.4th at p. 484.) A trial court must take care to not require disclosure of
the content of jury deliberations because a juror’s verbal reflection of the
reasons for his or her vote would improperly disclose the juror’s mental
processes. (Id. at pp. 484-485.) The inquiry should be limited in scope, focus
on the conduct of the jurors rather than the content of deliberations, and
“should cease once the court is satisfied that the juror at issue is participating
in deliberations and has not expressed an intention to disregard the court’s
instructions or otherwise committed misconduct, and that no other proper
ground for discharge exists.” (Id. at p. 485.) To limit the scope of the inquiry,
the Cleveland court instructed that “permitting the attorneys for the parties
to question deliberating jurors is fraught with peril and generally should not
be permitted.” (Ibid.)
      During the inquiry, the court should focus on determining whether the
jurors’ testimony supports the conclusion that a juror is refusing to
deliberate. “A refusal to deliberate consists of a juror’s unwillingness to
engage in the deliberative process; that is, he or she will not participate in
discussions with fellow jurors by listening to their views and by expressing
his or her own views. Examples of refusal to deliberate include, but are not
limited to, expressing a fixed conclusion at the beginning of deliberations and
refusing to consider other points of view, refusing to speak to other jurors,


                                       15
and attempting to separate oneself physically from the remainder of the jury.
The circumstance that a juror does not deliberate well or relies upon faulty
logic or analysis does not constitute a refusal to deliberate and is not a
ground for discharge. Similarly, the circumstance that a juror disagrees with
the majority of the jury as to what the evidence shows, or how the law should
be applied to the facts, or the manner in which deliberations should be
conducted does not constitute a refusal to deliberate and is not a ground for
discharge.
      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.” 

(Cleveland, supra

, 25 Cal.4th at p. 485.)
      Applying the general principles and procedures set forth in Cleveland,
the trial court below first instructed the jury on its continued duty to
deliberate after receiving the first note. It was only after receiving another
note the following day that the court determined that a further inquiry was
warranted. The court, however, failed to heed the Supreme Court’s warning
that “permitting the attorneys for the parties to question deliberating jurors
is fraught with peril and generally should not be permitted.” 

(Cleveland, supra

, 25 Cal.4th at p. 485.) Rather than leading its own inquiry, the trial
court largely abdicated the questioning to the attorneys. While this alone is
not prejudicial error, it likely shaped the inquiry and framed the trial court’s
ultimate decision.
      All of the 11 other jurors offered their opinion that Juror No. 12 was
refusing to deliberate and, based on this testimony, the trial court found that
Juror No. 12 was unable to “participate in discussion with fellow jurors”; had
a “fixed conclusion . . . at or near the beginning of the deliberations”;


                                        16
“refus[ed] to consider other points of view”; “refus[ed] to speak with other
jurors”; and that while she had not physically separated from the other
jurors given the small jury room, she created a “sort of an emotional distance”
from the other jurors.
      Although these factors were generally recognized in Cleveland as
supporting a conclusion that a juror is refusing to deliberate, we are not
“confident that the trial court’s conclusion is manifestly supported by
evidence on which the court actually relied.” 

(Barnwell, supra

, 41 Cal.4th at
p. 1053.)
      Although the jurors all offered their ultimate opinion that Juror No. 12
was refusing to deliberate, “a trial court should be wary of relying on the
opinions of jurors, rather than on its own consideration of objective facts.”

(Allen, supra

, 53 Cal.4th at p. 75.) Instead of reaching a conclusion premised
on the other jurors’ opinions, the court “should focus on its own consideration
of a juror’s conduct.” (Ibid.) “It is difficult enough for a trial court to
determine whether a juror actually is refusing to deliberate or instead simply
disagrees with the majority view. [Citations.] Drawing this distinction may
be even more difficult for jurors who, confident of their own good faith and
understanding of the evidence and the court’s instructions on the law,
mistakenly may believe that those individuals who steadfastly disagree with
them are refusing to deliberate or are intentionally disregarding the law.”
(People v. Engelman (2002) 

28 Cal. 4th 436

, 446 (Engelman).)
      Setting aside the jurors’ opinions regarding Juror No. 12, their
testimony regarding Juror No. 12 did not reveal that her conduct objectively
evinced a refusal to speak with other jurors or consider their viewpoints and
the evidence adduced at trial. At most, the jurors expressed a dissatisfaction
with the quality and content of Juror No. 12’s comments and her ultimate


                                         17
opinion regarding the evidence. For example, Juror No. 2 expressed
dissatisfaction with how Juror No. 12 responded—refusing to answer “yes-or-
no question[s] with a yes or no”—and the perceived quality of her answers,
which Juror No. 2 viewed as opinions without “any evidence to back up what
she says.” Juror No. 1 likewise testified that Juror No. 12 would repeatedly
offer her opinion during deliberations, but faulted her with failing “to present
any factual tidbit that caused her to take the position she was taking.”
Likewise, Juror No. 7 acknowledged Juror No. 12 would answer questions,
but faulted her with “not acting like a reasonable person” and offering an
opinion with “no reasoning to it.”
      Other jurors admitted Juror No. 12 continued to discuss the case in
deliberations but faulted her reasoning premised on a single opinion,
believing she needed to express additional opinions on other topics. Juror No.
10 stated that “Juror No. 12 has stated her opinion multiple times and—but
that’s where it goes. But it’s an opinion about one thing.” Juror No. 9
expressed her dissatisfaction with Juror No. 12’s contribution to the
discussion because “[s]he kept saying the same thing.” Juror No. 8 expressed
frustration with Juror No. 12’s repeated responses and told her that “you’ve
said this over and over again. We need to hear something different. We need
to hear why you—why you’re feeling this way.”
      These comments, along with other comments, suggest that Juror No. 12
was speaking with the other jurors, considering their viewpoints, and offering
her opinion in deliberations. Simply because the other jurors were not
satisfied with her opinion and the quality of her reasoning does not support a
finding that she was refusing to deliberate. “The circumstance that a juror
does not deliberate well or relies upon faulty logic or analysis does not
constitute a refusal to deliberate and is not a ground for discharge. Similarly,


                                       18
the circumstance that a juror disagrees with the majority of the jury as to
what the evidence shows, or how the law should be applied to the facts, or the
manner in which deliberations should be conducted does not constitute a
refusal to deliberate and is not a ground for discharge.” 

(Cleveland, supra

, 25
Cal.4th at p. 485.) “It is not always easy for a juror to articulate the exact
basis for disagreement after a complicated trial, nor is it necessary that a
juror do so. As we have stated, it is not required that jurors deliberate well
or skillfully.” 

(Engelman, supra

, 28 Cal.4th at p. 446.)
      The jurors’ testimony also does not support the trial court’s finding that
Juror No. 12 refused to deliberate because she formed a “fixed conclusion”
regarding the case before she reasonably could do so. Notably, the court
found that Juror No. 12 began deliberations “the same as everybody else did
at the very beginning.”
      Even accepting the truth of the testimony of the other jurors, Juror No.
12’s quick decision regarding the strength, or lack thereof, of the
prosecution’s case does not disclose a basis for her removal standing alone.
“It is not uncommon, or grounds for discharge, ‘for a juror (or jurors) in a trial
to come to a conclusion about the strength of a prosecution’s case early in the
deliberative process and then refuse to change his or her mind despite the
persuasive powers of the remaining jurors.’ ” (

Armstrong, supra

, 1 Cal.5th at
p. 453; quoting People v. Bowers (2001) 

87 Cal. App. 4th 722

, 734 [

104 Cal. Rptr. 2d 726

] (Bowers).)
      The factual scenario here bears a strong resemblance to the scenario
giving rise to the decision in Bowers, where the appellate court concluded the
trial court abused its discretion in discharging a juror. In Bowers, the
defendant was charged with sexual offenses against a minor. 

(Bowers, supra

,
87 Cal.App.4th at pp. 724-725.) Early on the fourth day of deliberations, the


                                        19
jury foreman informed the court that one of the jurors was refusing to
deliberate. (Id. at p. 725.) The court then questioned the jurors, who
revealed that the holdout juror had stated that he did not believe the victim’s
testimony and despite being willing to listen to the other jurors, was insistent
in his conclusion and became inattentive as they continued their
deliberations and implored him to change his mind. (Id. at pp. 726-727.) The
trial court discharged the juror, finding that he “refused to engage in
meaningful deliberations” and had refused to “explain to [the other jurors]
the basis for his reasoning for the position that he had taken.” (Id. at p. 727.)
The trial court concluded that the holdout juror “did not enter into
meaningful deliberations. That either he made up his mind here in the
courtroom after having heard the first witness, which is what he apparently
told his fellow jurors or once he got in the jury room after he initially and
almost immediately indicated his position and refused to meaningfully
discuss that position with the other jurors or to meaningfully consider the
statements and the evidence as they attempted to discuss with him. And
that he refused to participate with them even after their numerous efforts to
advise him of his duty and to attempt to elicit cooperation.” (Id. at p. 728.)
      The appellate court reversed, concluding the trial court abused its
discretion in discharging the juror. The Bowers court explained that the
record demonstrated the juror “deliberated and participated to some degree
in group discussions.” 

(Bowers, supra

, 87 Cal.App.4th at p. 732.) Moreover,
it recognized that a juror who “either made up his mind in the courtroom
after hearing the first witness or almost immediately after deliberations
started . . . does not amount to misconduct or a failure to deliberate.” (Id. at
p. 733.) “It cannot be said a juror has refused to deliberate so long as a juror
is willing and able to listen to the evidence presented in court, to consider the


                                       20
evidence and the judge’s instructions, and to finally come to a conclusion and
vote, which is precisely what [the juror] did. If the jury hangs because one
juror has persistent doubts about the sufficiency of evidence against
defendant despite deliberating without bias, a mistrial should result.” (Id. at
p. 735.)
      Here, like in Bowers, Juror No. 12 appears to have quickly reached the
conclusion that John Doe was not credible. The record does not reveal that
she refused to listen to the evidence or follow the court’s instructions
regarding how to consider the evidence and did not hesitate to express her
opinion in deliberation with the other jurors. The record does not suggest her
credibility determination was the result of any form of bias or made without
considering other evidence. The trial court did not find otherwise and in light
of the testimony at trial, we cannot say that Juror No. 12’s conclusion that
Doe was not credible was manifestly irrational. It is certainly within a juror’s
purview, as instructed by the court, to consider the witnesses’ credibility in
reaching her conclusion. (See, e.g., People v. Jones (1990) 

51 Cal. 3d 294

, 314
[“it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that
determination depends”].) Juror No. 12’s relatively quick consideration of the
evidence and reaching a conclusion regarding Barton’s guilt based on her own
credibility determination does not support a finding that she refused to
deliberate. Indeed, after Juror No. 12 was replaced, the newly constituted
jury reached its verdict within a few hours. Neither the prosecution nor the
court suggested that the entire jury’s relatively quick decision was based on
any misconduct by those jurors or refusal to deliberate. Just as a jury could
reasonably reach a decision within a few hours, Juror No. 12 could




                                        21
reasonably reach her conclusion that Barton was not guilty within a few
hours.
      Once Juror No. 12 reached her conclusion, her refusal to change her
mind and her decision to no longer attempt to explain that decision to the
other jurors also does not amount to misconduct. “[T]he court may not
discharge a juror for failing to agree with the majority of other jurors or for
persisting in expressing doubts about the sufficiency of the evidence in
support of the majority view. . . .” 

(Engelman, supra

, 28 Cal.4th at
p. 446.) “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.” 

(Cleveland, supra

, 25 Cal.4th at p. 485.) Juror No. 12
participated in deliberations for multiple days and, although she ultimately
did not change her mind, the record discloses that she listened to other jurors
and continued to consider the evidence for a reasonable time. Although
jurors may often change their mind based on their discussions with the rest
of the jury, maintaining a consistent opinion across multiple days of
deliberations does not demonstrate a refusal to deliberate.
      The trial court also found Juror No. 12 created a “sort of emotional
distance” with the other jurors, supporting the conclusion that she was
refusing to deliberate. We do not disagree that the other jurors offered
testimony supporting this conclusion. They testified Juror No. 12 did not
engage in “small talk” or “chitchat” with the other jurors during breaks in the
trial. Others suggested she was not friendly. She did not, however,
physically separate herself during deliberations. Rather, she sat at the head
of the table.




                                       22
      While the Supreme Court in Cleveland held that a juror who separates
herself physically from the remainder of the jury may suggest she is refusing
to deliberate, we are not aware of any opinion holding that a juror who is
deemed unfriendly or that does not participate in “chitchat” conversations
with the other jurors during breaks may be discharged. Although jury
deliberations may be most effective when the jurors are amicable and
deliberate with a sense of camaraderie, “jurors can be expected to disagree,
even vehemently, and to attempt to persuade disagreeing fellow jurors by
strenuous and sometimes heated means.” (People v. Johnson (1992) 

3 Cal. 4th 1183

, 1255.) Here, the other jurors may have concluded that Juror No. 12
was not friendly, but their testimony revealed she did not “functionally
separate[] herself from the rest of the jury,” as the Attorney General suggests

on appeal. 2 During deliberations, one juror faulted her with rolling her eyes
and looking away when other jurors discussed the evidence. Although this
conduct may have heightened the tensions in the jury room, it is not grounds
for her discharge and reveals she continued to listen to the other jurors even
if she was not persuaded by their arguments.
      Considered altogether, the jurors’ testimony demonstrates that Juror
No. 12 reached an opinion at odds with the other jurors, who grew frustrated
when she was unable to convince them that her opinion was correct and


2      Some jurors suggested that Juror No. 12 occasionally looked at her cell
phone during deliberations. In Armstrong, the Supreme Court suggested
that a juror who repeatedly looks at a book or cell phone during deliberations
may be attempting to separate herself from the other jurors, but “de minimis
references to a book and cell phone do not support a determination that [a
juror] was refusing to deliberate.” (

Armstrong, supra

, 1 Cal.5th at p. 452.)
Here, the references to Juror No. 12 looking at her cell phone were de
minimis and the trial court does not appear to have relied on this testimony
to find Juror No. 12 was refusing to deliberate.

                                      23
reasonable, refused to accept their arguments to the contrary, and declined to
engage in their attempts to change her mind by deliberating in a different
manner that did not involve consideration of John Doe’s credibility. This is
an insufficient basis for discharging a juror. As the Supreme Court in
Cleveland explained, “the circumstance that a juror disagrees with the
majority of the jury as to what the evidence shows, or how the law should be
applied to the facts, or the manner in which deliberations should be
conducted . . . is not a ground for discharge.” 

(Cleveland, supra

, 25 Cal.4th at
p. 485.) Accordingly, the trial court abused its discretion in discharging Juror
No. 12.

      The trial court’s error in discharging Juror No. 12 warrants reversal. 3

(Bowers, supra

, 87 Cal.App.4th at pp. 735-736.) She was the lone holdout
juror who consistently held to her belief Barton was not guilty and, had she
remained on the jury, it is reasonably probable the case would have ended in
a mistrial, a more favorable result for Barton than conviction. (Ibid.)
Instead of a mistrial, Barton was convicted within hours after Juror No. 12
was discharged and the alternate juror joined the jury. There is no double
jeopardy bar to retrial of the case. (

Armstrong, supra

, 1 Cal.5th at p. 454;
citing People v. Hernandez (2003) 

30 Cal. 4th 1

, 6.)
                                       II
                    SUFFICIENCY OF THE EVIDENCE
      After the filing of our decision, the Supreme Court granted review and
transferred the matter to this court with directions to consider Barton’s


3      Because we hold that the judgment must be reversed based on the trial
court’s error in discharging Juror No. 12, we need not consider Barton’s other
arguments on appeal in favor of a reversal other than his challenge to the
sufficiency of the evidence, discussed post.

                                       24
“claim that the evidence was insufficient to sustain his convictions for forcible
oral copulation and forcible sodomy. (Burks v. United States (1978) 437 U.S
1, 16-18; People v. Morgan (2007) 

42 Cal. 4th 593

, 613; People v. Hayes (1990)

52 Cal. 3d 577

, 631 [(Hayes)].)” Having now considered the claim, we conclude
the evidence was sufficient to support the jury’s verdict.
      “Our task is clear. ‘On appeal we review the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Cravens (2012) 

53 Cal. 4th 500

, 507.)
      “In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal
for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the
jury’s verdict.” (People v. Zamudio (2008) 

43 Cal. 4th 327

, 357.)
      For purposes of his appeal, Barton does not dispute that the sexual acts
occurred. Rather, he focuses only on the sufficiency of the evidence to
support that the acts occurred “by means of force, violence, duress, menace or




                                        25
fear of immediate and unlawful bodily injury.” (§§ 288a, subd. (c)(2) 4, 286,
subd. (c)(2)(A).) More specifically, both parties appear to agree that because
Barton did not use direct force, violence, or threats of physical injury, the
jury’s verdict is premised on an implied finding that Barton performed the
acts by means of duress.
      As used in these statutes, “duress” is defined to mean “ ‘a direct or
implied threat of force, violence, danger, hardship or retribution sufficient to
coerce a reasonable person of ordinary susceptibilities to (1) perform an act
which otherwise would not have been performed or, (2) acquiesce in an act to
which one otherwise would not have submitted.’ ” (People v. Leal (2004) 

33 Cal. 4th 999

, 1004; quoting People v. Pitmon (1985) 

170 Cal. App. 3d 38

, 48
(Pitmon); see also People v. Senior (1992) 

3 Cal. App. 4th 765

, 775.)
      “The total circumstances, including the age of the victim, and his
relationship to defendant are factors to be considered in appraising the
existence of duress.” 

(Pitmon, supra

, 170 Cal.App.3d at p. 51; see also People
v. Schulz (1992) 

2 Cal. App. 4th 999

, 1005 [“Duress can arise from various
circumstances, including the relationship between the defendant and the
victim and their relative ages and sizes.”].) Although many of the cases
discussing the element of duress arise in situations where the abuse is
happening between family members, the same general principles are
applicable here. “Other relevant factors include threats to harm the victim,
physically controlling the victim when the victim attempts to resist, and
warnings to the victim that revealing the molestation would result in
jeopardizing the family.” (People v. Cochran (2002) 

103 Cal. App. 4th 8

, 14.)
“The very nature of duress is psychological coercion. A threat to a child of


4      After Barton’s conviction, section 288a was renumbered and is now set
forth in section 287.
                                       26
adverse consequences, such as suggesting the child will be breaking up the
family or marriage if she reports or fails to acquiesce in the molestation, may
constitute a threat of retribution and may be sufficient to establish
duress . . . .” (Id. at p. 15.)
       Considering the totality of the circumstances, we conclude the evidence
is sufficient to support the jury’s implied finding of duress. Importantly,
Barton’s abuse must be placed within the context of his role as a teacher and
authority figure at a military school. Doe was a 14-year-old “cadet” at the
school, where he had very little freedom within the Academy’s highly-
structured environment.
       Within this strict environment, Doe was dependent on Barton for two
primary reasons. First, Barton provided Doe with his only relief from his
spartan existence. Barton would buy Doe food because Doe was a vegetarian
and the mess hall primarily served meat. Barton also let Doe lounge at his
house and would let Doe watch television, drink soda, and eat candy. Barton
further made the situation livable for Doe by buying him expensive presents
and paid for Doe to take trips off campus.
       Second, Barton was able to establish himself as an important “father
figure” in Doe’s life with the ability to strongly influence Doe’s mother.
Barton established the same relationship with Doe’s grandparents. Doe’s
mother had placed Doe in the Academy with the understanding that if he
behaved for one year, he could return to public school with all of his friends.
Thus, any suggestion by Barton to Doe’s mother or grandparents that Doe
was not behaving would have serious consequences for Doe.
       Within this context, Doe explained that he had no choice but to submit
to the molestation because “there’s just nowhere to run to. There’s nowhere
to go. . . . I really felt like I had absolutely no choice. I felt like I was captive,


                                          27
which ultimately I was. I was in a lockdown military school. There was
nowhere to go.” Doe further explained that on campus, “I had zero power.
And [Barton] . . . he had a bit of clout on the campus. He was more in control
than any of the teachers would be. If anything, he was kind of just below the
president, as far as what his power was on the campus.” Given this power
differential, Doe felt powerless to stop the abuse and knew that if he
complained or resisted, “[t]he best-case scenario is I’m going to a worse
military school.”
      Doe did not reach this conclusion based on mere speculation. Rather,
Barton made it clear that if Doe did not submit to the molestation, there
would be consequences. Barton threatened to tell Doe’s mother that Doe was
“acting up.” Another student recalled Doe telling him that Barton threatened
to stop tutoring him and to tell Doe’s mother that he was “acting up” if he
refused to go on a trip with Barton. Thus, based on Barton’s representations,
Doe reasonably perceived Barton as having “control of my complete life and of
all of my family unit.” Accordingly, Doe was psychologically coerced into
submitting to Barton’s lewd acts because he knew that if he failed to do so, he
would suffer significant hardship. Moreover, Barton made Doe think it was
futile to complain by informing Doe that he had previously been accused of
molestation but was able to “beat the case.”
      Considered altogether, the evidence establishes that Doe submitted
himself to Barton’s abuse because of the duress caused by being placed in a
strict military academy where Barton, a middle-aged authority figure, had
complete control over Doe’s ability to obtain food that suited his diet, find a
break from the strict environment, and controlled Doe’s ability to eventually
leave the military school. Doe did not form an impression of such coercion
based on mere speculation, but rather reached this conclusion after Barton


                                       28
made it clear that he would exact revenge if Doe objected and that it would be
futile to complain. The evidence was more than sufficient to support the
jury’s implied finding that Barton committed the sexual acts by means of
duress. Thus, Barton’s challenge to the sufficiency of the evidence to support
the jury’s verdict is meritless. While we reverse the judgment due to the
error regarding discharge of Juror No. 12, Barton may be tried again for
these offenses given our conclusion that the evidence was sufficient to sustain
the convictions at the previous trial. (See, e.g., 

Hayes, supra

, 52 Cal.3d at
p. 631.)
                                DISPOSITION
      The judgment is reversed.


                                                                 HUFFMAN, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.




                                       29
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