People v. Williams (61 Cal. 4th 1244, 2015)

Opinion

CORRIGAN, J.

A jury convicted defendant Jack Emmit Williams of the 1993 attempted robbery and first degree murder of Yvonne Los. It found true a robbery special-circumstance allegation and enhancement allegations that a principal was armed with a firearm.

Defendant was also convicted of the robbery of James Garcia; attempted kidnapping with intent to rob of Debby Phillips and of Deena Nolin; robbery of Dale Nonies; attempted robbery of Barbara DeGeorge; accessory to the robbery of Patricia Smith Estep and of Charles Estey; robbery of Glynn Brodbeck; and attempted kidnapping with intent to rob of Glynn Brodbeck. As to each count the jury found a principal was armed with a firearm. For the counts involving Dale Nonies and Glynn Brodbeck, it found that defendant personally used a firearm.

The jury returned a verdict of death for the murder. The trial court denied a motion to modify the verdict and sentenced defendant to death. It also sentenced defendant to a total of 24 years six months, the sentences to run consecutively. This appeal is automatic. We affirm the judgment in its entirety.

I. Factual Background

A. Introduction

In May 1993, defendant induced a group of teenagers to form a gang. Between May 14 and May 20, 1993, gang members committed a series of robberies, attempted robberies and kidnappings, carjackings and murder. Defendant was convicted of these offenses either as a direct perpetrator, a conspirator, an aider and abettor or an accessory.

B. Prosecution’s Guilt Phase Evidence

1. The Crimes and Related Events

a. Events of May 14, 1993

In the early morning of May 14, 1993, while defendant drove around Moreno Valley with Mondre Weatherspoon and Alonso Dearaujo, the three decided to commit a robbery. Defendant had a .380-caliber handgun that was to feature prominently in the ensuing crimes. He directed Weatherspoon to the parking lot of a Circle K convenience store and gave Dearaujo the gun. He and Weatherspoon told Dearaujo to go into the store, pull out the gun and demand money.

James Garcia was working at the Circle K when Dearaujo entered, pointed a gun and told him to “give him all the money or he’d blow my . . . head off.” Garcia emptied the cash register into a bag, then turned around and started to count to 100 as directed. When the doorbell chimed, Garcia looked and Dearaujo had gone. He locked the door and called the police

Dearaujo ran back to the car and Weatherspoon drove away. Defendant took his gun back and the three split the stolen money.

2. Formation of the Gang

The same night, a group of young people ranging in age from 13 to 19 gathered at the home of 17-year-old Natalie Dannov, defendant’s girlfriend. Defendant had called the meeting and invited the participants. According to Dannov and others, defendant talked about forming a gang to commit crimes and “have fun.” Stolen money would be used to buy a house and invest in stocks. Those over 18 would be given bank accounts. Defendant said the gang would be called the Pimp-Style Hustlers. Gang members would earn “stripes” or “G stripes” by committing crimes, carjackings and robberies. At one point, defendant demonstrated how to commit a carjacking, using Dearaujo as his mock victim. The victim was to be put in the car trunk. If a target resisted, defendant directed his members to “cap ’em or shoot ’em.” Although others also spoke, defendant was the leader. After his presentation, several people, including defendant, got into a van driven by John Howell and went out looking for someone to carjack.

3. Attempted Kidnappings for Robbery of Debby Phillips and Deena Nolin (Counts 4 and 5)

Defendant directed Howell to the parking lot of Dilly’s, a nightclub. Defendant gave George Holland the .380-caliber handgun and told him to commit the carjacking because he was the oldest. He also told 14-year-old Andrew Cannioto to accompany Holland. Cannioto had a pocketknife.

Seeing Deena Nolin and Debby Phillips getting into a car outside the club, Holland approached the driver’s window. When Nolin rolled it down, Holland pointed a gun through it, and told Nolin to get into the backseat. Cannioto approached the passenger side where Phillips sat. The women got out of the car, but Nolin stopped Phillips from getting into the backseat. She said Holland could take the car and their purses, but they would not stay in the car. Phillips ran toward the nightclub. Holland and Cannioto ran back toward the van. The passengers told them not to get in and they kept running. Around 30 minutes later, defendant and Weatherspoon picked them up. They drove to a hotel where Holland’s sister had rented a room to celebrate.

4. Robbery of Dale Nonies (Count 6)

Later that night, defendant, Weatherspoon, Holland and Steven McNair went to find another carjack victim. Holland drove. Around midnight, they saw Dale Nonies and his girlfriend, Genalyn Doronio, saying goodnight in front of Doronio’s house. Nonies’s white Ford Escort was parked at the curb. Defendant and Weatherspoon got out of the car. Defendant pointed his gun at the couple and demanded Nonies’s car key and wallet. Nonies asked to keep his wallet and other keys. The robbers agreed taking only his money and car key.

Defendant and Weatherspoon drove off with Nonies’s car, followed by Holland and McNair. In a secluded area, they stripped the car and rolled it into a ditch.

b. Events of May 15, 1993

1. Attempted Carjacking of Barbara DeGeorge (Count 7)

On May 15, defendant told gang member Anthony Post to carjack a vehicle so defendant could drive it to the prom. After two aborted attempts, defendant and Post went to the parking lot of a theater complex. They saw a woman getting out of a car. Defendant said, “she’ll be easy because she hasn’t put her keys away yet.” Post was reluctant, but defendant gave him the gun and “pumped [him] up.” Post approached the woman, lifted his shirt to display the gun in his waistband, and demanded her car keys.

The victims, Barbara DeGeorge and her 10-year-old daughter Lisa, were on their way to the movies. When Post displayed the weapon, DeGeorge and her daughter ran. Post ran toward defendant, who waved him away. Post hid the gun in a field and retrieved it later.

2. Robbery of Patricia Smith Estep and Charles Estey (Counts 8 and 9)

Later that night, defendant sent Dearaujo and 13-year-old gang member Christopher Lyons to rob a liquor store. Dearaujo had defendant’s gun; Lyons carried two knives. When they got to the liquor store, it was closing. They left.

They passed a building with the lights on and people inside. Lyons said, “let’s rob them.” Lyons took the gun and they entered. The building housed a Los Angeles Times distribution center owned by Charles Estey who was there with his mother, Patricia Smith Estep. Lyons and Dearaujo ran into the office with Lyons wearing a stocking mask. Initially, Estey thought his friends were playing a joke on him, even as the gunman pointed the gun at his face. Dearaujo held a knife to Patricia Smith Estep’s back and told her not to look at him. Ordered to get on the floor, Estey said, “Knock it off, Manny .... This has gone far enough.” Seeing the knife pointed at his mother, Estey realized the robbery was not a joke. The robbers took Estey’s wallet and his mother’s purse. Dearaujo told Lyons, “Let’s cap them and get out of here.” Estey offered them his car keys, saying, “We never saw you once, just go.” They left.

Dearaujo and Lyons met defendant. They gave him the purse and wallet that together contained about $100. Defendant kept the money and commended them for a “good job.”

c. Events of May 19 through 20, 1993

1. Murder of Yvonne Los (Counts 1 and 2)

On the evening of May 19, 1993, defendant was part of a group planning to drive to a party in Anaheim. As he and others were getting into a car, Dearaujo and Lyons came over. Defendant asked if Dearaujo could come with them, but the group was too large to fit in the vehicle. Defendant told Dearaujo and Lyons to go to the Family Fitness Center and “get a car.” Defendant told Dearaujo to carjack a light-colored sedan and put the victim in the trunk. He gave Dearaujo his gun along with a jacket and a bandana to cover his face. He described where to meet him afterwards.

Dearaujo and Lyons walked to the parking lot of the fitness center and waited for an “appropriate” victim. Yvonne Los, an Air Force nurse and mother of two, pulled into the lot. When her car passed them, Dearaujo said, “This is it, let’s do it.” As Los sat in the driver’s seat, Dearaujo tapped the car window with the gun barrel and said, “Shh.” Los looked frightened and locked the doors. Lyons tried to open the passenger door. A witness heard him yelling, “get out of the car, get out of the fucking car.” When Los started the car, Dearaujo shot her. The car rolled backwards, striking another vehicle. Los tapped her car horn and then slumped over. Dearaujo and Lyons fled.

An off-duty police officer heard the crash and responded to find Los shot in the neck and unresponsive. A bullet had severed Los’s carotid artery causing death by exsanguination.

Later, Dearaujo and Lyons met defendant and reported what happened. Defendant told them to find someplace to stay that night and to come to Dannov’s house the next day.

2. Post Murder Celebration

The following afternoon, the mood at Dannov’s house was festive. Defendant referred to Dearaujo as “Charles Manson.” He awarded Dearaujo two stripes, and Lyons one, for a “good job.” When a television newscast aired a photograph of Los, Dearaujo said, “I smoked that bitch.” When Los’s fiancé appeared on screen and said they were planning to marry, Lyons said, “Not no more.”

3. Robbery and Attempted Kidnapping for Robbery of Glynn Brodbeck (Counts 10 and 11)

That night, defendant, Weatherspoon and James Handy tried to commit another carjacking. Defendant took the gun. Defendant and Weatherspoon approached Glynn Brodbeck, who was parked in a Taco Bell lot waiting for his fiancée to finish her shift. Defendant tapped on the driver’s window and told Brodbeck to get out of the car. Brodbeck saw defendant with a gun and two other men standing nearby.

Defendant demanded his wallet, but Brodbeck had left it at home. Handy “frisked” him and took his cigarettes. Weatherspoon took Brodbeck’s keys and opened the trunk, where he and defendant planned to put their victim. When the robbers looked into the trunk, Brodbeck ran toward the Taco Bell. Defendant shot at him, but Brodbeck slipped. As he fell, he heard the bullet pass by. He recovered and kept running until he entered the restaurant, where he called police. Defendant, Weatherspoon and Handy left the scene, dropping Brodbeck’s keys in the parking lot.

4. Defendant’s Arrest and Statement to Police

The murder investigation led police to George Holland, who revealed defendant’s name. Police arrested him on May 22, 1993. En route to the county jail, defendant asked how much time he could get for carjacking. Defendant also commented that a detective had called him “David Koresh,” adding he did not think he was Koresh, but guessed he was a sort of leader.

Police interrogated defendant on May 22 and 23. He admitted calling the meeting at Natalie Dannov’s house, where he and others discussed committing carjackings. He also admitted proposing to put the money into a common investment pool and to coining the name Pimp-Style Hustlers. He denied being the “ringleader,” claiming he was the “second hand man” to Mondre Weatherspoon.

Defendant admitted either planning or committing the Circle K robbery, the Nonies robbery and the attempted carjacking of Brodbeck at Taco Bell. He was present at the attempted carjacking of Phillips and Nolin and the attempted carjacking of DeGeorge. Defendant conceded he divided the money Dearaujo and Lyons took from Charles Estey and his mother. As to the murder, defendant admitted knowing that Dearaujo was “gonna jack a car,” giving him a gun and planning to meet him afterwards. He denied ordering Dearaujo to commit the crime.

C. Defendant’s Guilt Phase Evidence

Defendant called Jason Domke, a friend of Christopher Lyons’s. Domke testified that Lyons showed him a knife and asked him if he wanted to go “jacking” with him. Domke testified he saw Lyons.retrieve a gun and a bag of shells from Natalie Dannov’s house. Lyons showed him a woman’s stolen driver’s license.

D. Codefendant Dearaujo’s Guilt Phase Evidence

Dearaujo called Keisha Lawrence, who had been married to John Howell; she had pled guilty to two counts of being an accessory to attempted kidnapping for robbery and served eight months of her one-year sentence. Lawrence believed Dearaujo was slow-witted and wanted to fit in. He was “picked on,” “punched” and manipulated by defendant and others in the group. Defendant was the leader the others looked up to. She corroborated defendant’s involvement in the attempted carjacking of Debbie Phillips and Deena Nolin and the robbery and carjacking of Dale Nonies. Following the murder, Lawrence called defendant and asked what he was going to do about the homicide for which she blamed him. He said, “It’s already done. The bitch is dead.” When she asked about Dearaujo, defendant said Dearaujo was fine; he had the situation under control and she should not worry.

E. Prosecution’s Penalty Phase Evidence

1. Victim Impact Evidence

Yvonne Los’s family and friends described the impact of her death. Her fiancé, ex-husband, parents, two siblings and two children represented the family. They were joined by two Air Force coworkers.

Los was the oldest child in a close-knit family and had grown up taking care of her younger siblings. Her desire to help people led her to choose nursing as her profession. She joined the Air Force to further her education and was proud of her military service. She rose to the rank of staff sergeant, a difficult achievement for medical personnel. She did volunteer work and cared for a disabled boy. Committed to her Catholic faith, she loved her two children and instilled high moral values in them. She was a person who loved unconditionally.

Each relative described learning of Los’s death, their feelings of loss and grief and the impact of her death on the extended family. Her father testified about the pain of losing a child. Siblings recounted the family’s sadness and the pall cast over family gatherings. Her son, age 10, was five when she died and remembered her as a “nice mom.” Her daughter, 15, testified Los was a kind person and a role model. She thought of her mother every day. She remained upset that she and her mother had argued on the night of the murder and that she had gone to bed without telling her mother good night. Los’s ex-husband described how difficult it had been for him and their children after her death. He returned from Germany, where he was stationed, to be with the children and take them back to Germany. Witnesses described her funeral and burial in Iowa and a posthumous ceremony where an Air Force dormitory for nurses was named in her honor. A videotape of the ceremony, an unusual honor, was shown to the jury along with a montage of still photographs.

2. Violent Criminal Activity

The prosecutor presented evidence in aggravation documenting defendant’s criminal activity involving the “use or attempted use of force or violence or the express or implied threat to use force.”

Mario Loa testified that in September 1991 he was attacked by defendant and the ex-boyfriend of a woman Loa was dating. Trina P. testified that in January 1992, defendant hit her in the mouth following a disagreement.

A number of witnesses testified to defendant’s violent crimes while in custody. Inmate Donald Deloney testified how, in March 1994, he and defendant joined together to intimidate and assault other inmates. Defendant beat up an inmate to secure a lower bunk for Deloney and forced another inmate to orally copulate defendant. Deloney and defendant robbed at least 13 inmates. They took commissary cards and physically threatened Timothy Goodfield. After the incident with Goodfield, defendant and Deloney were reassigned to high security segregated housing.

In May 1994, defendant fought with inmate Mark Sanchez. That same month, he ordered a Latino inmate to attack a White prisoner who had a swastika tattoo. In July 1994, defendant fought with inmate Mark Heinzen, believing he was gay. In August 1994, defendant assaulted Dale Foster because he wanted Foster’s bunk. In December 1995, defendant fought Arturo Alatorre, who had complained that defendant exceeded his phone time.

F. Defendant’s Penalty Phase Evidence

Defendant’s father testified he was a “normal kid,” who had experienced problems in middle school that were resolved. He dropped out of high school and an alternative school. At 17, defendant went to work in his father’s landscaping business. At 18, he began living away from home intermittently. Defendant’s father was acquainted with most of his friends. He had been unaware defendant had any problems with substance abuse or violence. Defendant’s arrest devastated his father who could not imagine life without his son.

Defendant’s mother abused drugs when defendant was growing up and would visit out-of-town relatives for months at a time. Occasionally, she took her children.

Defendant’s sister described him as helpful, respectful and well-liked.

Rahin Brown was defendant’s neighbor and friend in 1987. They played basketball and football together. Brown left home, joined the Navy, and went to college. He remained in touch with defendant, who was like a member of Brown’s family. Brown was unaware of any bad behavior on defendant’s part. In spite of defendant’s convictions, Brown remained his friend and believed he had good qualities.

Velma McDowell lived next door to defendant’s grandmother. He ran errands for her and mowed her lawn. He was respectful and “a good kid.”

Defendant’s sixth and seventh grade teachers also testified about his good character.

Anthony Casas, a private investigator and litigation consultant, worked for the Department of Corrections and Rehabilitation for 23 years. He described the prison classification system. Based on his case review and interviews with defendant, he opined that if sentenced to life without parole, defendant would be sent to a level 4 facility, the most restrictive in the system. Casas described level 4 facilities, routines and disciplinary actions. Casas believed defendant would adapt and do well in that setting. Notwithstanding his “infractions” while in custody, Casas believed he would not be a management problem in prison.

Defendant also presented evidence that Mario Loa failed to initially name him as one of his assailants. A district attorney investigator testified that the attack on the inmate with the swastika tattoo was not committed by a Latino inmate acting on defendant’s orders, but by someone else.

G. Prosecution Rebuttal Evidence

Correctional Officer Martin Trochtrop found homemade weapons concealed in the ceiling of defendant’s cell. Samuel Francis, a correctional officer for over 17 years, was called to counter Casa’s opinion that defendant would pose no threat at a level 4 facility. Francis testified that an inmate with a record of weapons possession and assaults on other inmates might be an administrative problem. In his opinion, such an inmate would continue to demonstrate a propensity for violence.

II. Guilt Phase Issues

A. Use of Restraints

Defendant contends the trial court abused its discretion when it ordered the use of a leg restraint without a finding of manifest necessity. (People v. Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322].) He argues further that the court’s decision violated his rights under various constitutional provisions. (U.S. Const., 5th, 6th & 8th Amends.; Cal. Const., art. I, §§ 1, 7, 15, 16, 17.) Defendant has forfeited the claim and, in any event, fails to show prejudice.

Following preliminary instructions to the jury, and outside the jury’s presence, the trial court remarked, “I was approached by the security people that their intention is to request at some point [defendant] wear, at least initially, the leg restraint locking-type of device to prevent his escape or any type of other security issue. As I understand it, although I have never seen it, it is an unobtrusive device which is not visible to any member of the jury. As long as there’s no attempt to rapidly run, it remains flexible. . . . [I]f he tries to run, it’s supposed to lock .... I’ve been told that there are a number of incidents [since defendant] has been in custody that have occurred in jail that apparently support the sheriff’s concern that some, at least minimal, restraints ought to be employed in this case.” Defense counsel responded, “I told [defendant] to expect this. So I don’t think at this point I’m in a position to comment further, but other than to say [defendant] has never been a problem for transportation, to my knowledge. I think the incidents that may have occurred in the jail are pretty old at this point. Other than that, I told [defendant] already to expect to have the leg restraint. He’s seen it already and knows what it is.” Addressing the bailiff, the court said, “[I]f there are any concerns [about] that regular restraint, I assume that you will or someone from your office will make the presentation or ask us to revisit the issue.” The bailiff said, “yes.”

Later, during a recess, defendant complained the restraint was “very, very uncomfortable” because “[i]t’s cutting me.” The prosecutor suggested leg shackles. Defense counsel replied, “I don’t think it would be to[o] oppressive to sit. We can find out tomorrow, and maybe leg shackles would be the alternative. Since he doesn’t have to stand up, the jury wouldn’t see it, but I’ll alert the court.”

The last reference to defendant’s restraint was made in the context of a discussion about the use of restraints on prosecution witnesses. During that discussion, the prosecutor noted that defendant and Dearaujo were “not restrained. They don’t have handcuffs on. As far as the jury knows, they’re greatly unrestrained.”

“Under Duran, supra, 16 Cal.3d 282, a criminal defendant may be subjected to physical restraints in the jury’s presence upon ‘a showing of a manifest need for such restraints.’ [Citations.] This requirement is satisfied by evidence that the defendant has threatened jail deputies, possessed weapons in custody, threatened or assaulted other inmates, and/or engaged in violent outbursts in court. [Citations.] [¶] The trial court’s decision to physically restrain a defendant cannot be based on rumor or innuendo. [Citation.] However, a formal evidentiary hearing is not required. [Citation.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031-1032 [47 Cal.Rptr.3d 467, 140 P.3d 775].) The trial court’s determination is reviewed for abuse of discretion. (People v. Combs (2004) 34 Cal.4th 821, 837 [22 Cal.Rptr.3d 61, 101 P.3d 1007].)

Defendant failed to object to restraints and has therefore forfeited his claim on appeal. (People v. Foster (2010) 50 Cal.4th 1301, 1321 [117 Cal.Rptr.3d 658, 242 P.3d 105].) At no time did the defense request a formal hearing on the question. In any event, we need not consider any abuse of discretion because no evidence suggests that any juror saw the restraints. (Id. at p. 1322; see People v. Manibusan (2013) 58 Cal.4th 40, 85 [165 Cal.Rptr.3d 1, 314 P.3d 1].) “[W]e have consistently held that courtroom shackling, even if error, [is] harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participate in his defense.” (People v. Anderson (2001) 25 Cal.4th 543, 596 [106 Cal.Rptr.2d 575, 22 P.3d 347].)

The only record regarding the restraint was the court’s initial comment that it would not be visible to the jury and the prosecutor’s later observation that defendant did not appear to be restrained. Defendant cites nothing in the record to contradict these references. He did not testify at either phase of the trial and made a single passing reference to discomfort. No evidence suggests the restraint influenced him not to testify, affected his demeanor or impaired his ability to communicate with defense counsel. (People v. Combs, supra, 34 Cal.4th at pp. 837-839; see People v. Manibusan, supra, 58 Cal.4th at p. 87.)

Defendant claims Deck v. Missouri (2005) 544 U.S. 622 [161 L.Ed.2d 953, 125 S.Ct. 2007] stands for the proposition that when restraints are used prejudice is presumed. We have previously rejected this construction of Deck. (People v. Letner and Tobin (2010) 50 Cal.4th 99 [112 Cal.Rptr.3d 746, 235 P.3d 62].) We noted “[i]n Deck there was no dispute that the restraints were visible to the jury — a circumstance that courts consistently have viewed as inherently prejudicial.” (Id. at p. 155.) We declined to presume the jurors viewed the restraint, and nothing in the record showed that they did so. (Ibid.) The same analysis applies here.

B. Excusal of Juror No. 12 During Trial

During the prosecution’s case, the court dismissed a juror who improperly expressed an opinion about witness credibility, then lied to the court about having made the statement. Defendant contends the excusal of the juror was an abuse of discretion and also violated his rights under various constitutional provisions. (U.S. Const., 5th, 6th, 8th & 14th Amends.)

1. Background

Juror No. 6 initially reported that Juror No. 12 said she was upset because James Handy, an in-custody prosecution witness, had been brought to court in handcuffs. Later, Juror No. 7 told Juror No. 6 that Juror No. 12 said the only reason Handy had been handcuffed was because he was African-American. Juror No. 12 herself was African-American.

Upon inquiry, Juror No. 12 admitted making the comment. The court explained a decision to restrain an inmate witness was based on whether the witness posed a security threat and was “not a racial decision.” Juror No. 12 said the episode would not prejudice her against either side. She acknowledged that her “mistake” was, “I’m not supposed to give my opinions to others.” At the prosecutor’s request, the trial court also questioned Juror No. 7 about Juror No. 12’s comment. She confirmed that Juror No. 12 had asserted “the black [prisoner-witnesses] are in shackles.”

The prosecutor sought to excuse Juror No. 12 because she could not be fair and impartial. The trial court denied the request because the juror had said she could be fair to both sides and her comment concerned an ancillary matter.

The trial court told the jury that restraints were placed on a witness for security and should have no bearing on its evaluation of the witness’s credibility. The trial court also reminded jurors they were not to discuss the merits of the case before it was submitted to them.

Nine days later, another juror reported comments by Juror No. 12. Juror No. 2 told the court that after Glynn Brodbeclc testified, Juror No. 12 said, “the only truth lied [sic] in the parking lot and that everyone else was just lying.” Juror No. 2 reported the comment had been made after the court’s earlier admonition not to discuss the merits of the case. Juror No. 2 also said Juror No. 12’s latest remark had been made in the presence of other jurors.

The matter was put over for several days before Juror No. 12 was questioned. She said she heard someone make a similar statement but denied it was she. She heard someone say “everybody in the courtroom was lying except the judge,” but did not remember who made the comment. She volunteered she was “a strong-opinionated person,” and suggested that “maybe somebody would not like for me to be on the jury, to go into deliberations or whatever.” She wondered if she was being “pinpointed with things that are said or done as far as this particular trial is concerned.” The court pointed out that the juror who had reported this comment was not the same juror who had reported the handcuffing comment. Juror No. 12 said she could be fair but felt like “I’m being attacked.”

The remaining jurors and alternates were questioned. No one remembered hearing the statement Juror No. 2 reported. Alternate Juror No. 3 said he overheard a juror say she was upset by a comment Juror No. 12 made. That remark could have been made on the day Brodbeck testified.

The prosecutor renewed her motion to dismiss Juror No. 12, saying the issue was whether Juror No. 2 was credible. She argued that Alternate Juror No. 3’s recollection corroborated Juror No. 2’s claim that Juror No. 12 had made the statement about witnesses lying. The prosecutor asserted that the new statement violated the court’s admonition not to discuss the case and that Juror No. 12’s denial “was not credible.”

Over defendant’s objection, the court removed Juror No. 12. Referring to the handcuff statement, the court noted that Juror No. 12 had said one of the things she learned from the incident was not to share her opinion with others. Nonetheless, the second statement attributed to her went “directly [to] the merits of the case” and showed Juror No. 12 had formed an opinion about the witness’s credibility. This behavior violated the court’s admonition not to do so until the case was finally submitted. The court held the juror had lied when denying she made the statement and that Juror No. 2 was credible.

The court found that Juror No. 12’s misconduct was thrice improper. “First, she, in violation of the Court’s order, formed an opinion about the merits of the case, and two, she expressed that opinion to other jurors, and three, when confronted with that, in my opinion she lied to the Court as to whether she made the statement in the first place.” The juror was dismissed and an alternate seated.

2. Discussion

“The court may discharge a juror for good cause (see § 1089), which includes a failure to follow the court’s instructions . . . .” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 69 [133 Cal.Rptr.3d 548, 264 P.3d 336].) “A juror who violates his or her oath and the trial court’s instructions is guilty of misconduct.” (People v. Linton (2013) 56 Cal.4th 1146, 1194 [158 Cal.Rptr.3d 521, 302 P.3d 927].) “We review a trial court’s decision to discharge a juror under an abuse of discretion standard, and will uphold such decision if the record supports the juror’s disqualification as a demonstrable reality. [Citations.] The demonstrable reality test ‘requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [disqualification] was established.’ [Citation.] To determine whether the trial court’s conclusion is ‘manifestly supported by evidence on which the court actually relied,’ we consider not just the evidence itself, but also the record of reasons the court provided. [Citation.] In doing so, we will not reweigh the evidence. [Citation.]” (People v. Wilson (2008) 43 Cal.4th 1, 26 [73 Cal.Rptr.3d 620, 178 P.3d 1113].) We defer to the trial court’s credibility assessments “based, as they are, on firsthand observations unavailable to us on appeal.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053 [63 Cal.Rptr.3d 82, 162 P.3d 596].)

Section 1122 requires that after the jury is sworn and before opening arguments it be instructed about “its basic functions, duties, and conduct,” including that the jurors “shall not converse among themselves, or with anyone else, ... on any subject connected with the trial.” (§ 1122, subd. (a)(1).) This jury was so instructed. Section 1122 also requires that “[t]he jury shall also, at each adjournment of the court before the submission of the cause to the jury, ... be admonished by the court that it is their duty not to . . . converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.” (§ 1122, subd. (b).) Those admonitions were given as required. A juror’s violation of these directions constitutes serious misconduct. (People v. Majors (1998) 18 Cal.4th 385, 423 [75 Cal.Rptr.2d 684, 956 P.2d 1137].)

Moreover, after the initial inquiry as to the handcuffing, the court again drew the jury’s attention to the prohibition against discussing the case until it was submitted to them. Indeed, Juror No. 12 herself recognized she should keep her opinion to herself.

On this record, the trial court did not abuse its discretion in dismissing Juror No. 12. The crux of the court’s ruling was its credibility determination that Juror No. 2 was truthful and Juror No. 12 was not. There is no basis to disturb that finding on appeal. Juror No. 12 was well aware that she was not to form an opinion on any matter touching upon the case or to express an opinion to others. Nevertheless, her second remark shows she had formed an opinion about witness credibility. She then shared it with at least one other juror. She compounded her misconduct by lying to the court. Juror 12’s inability to perform her duty “appear[s] in the record as a demonstrable reality.” (People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537].)

C. Instructional Claims

1. Lesser Included Offense Instruction

Defendant contends the trial court erred by failing to provide, sua sponte, lesser included offense instructions on second degree felony murder, second degree murder and voluntary manslaughter. He maintains the error violated his rights under various constitutional provisions. (U.S. Const., 5th, 6th, 8th & 14th Amends.) Because no substantial evidence implicated issues addressed in these instructions the trial court was not required to give them.

“The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present. . . . [¶] Nevertheless, ‘the existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense . . . .’ [Citation.] Such instructions are required only where there is ‘substantial evidence’ from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.” (People v. DePriest (2007) 42 Cal.4th 1, 50 [63 Cal.Rptr.3d 896, 163 P.3d 896], citation omitted.) “Substantial evidence,” in this context, “is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 [47 Cal.Rptr.2d 569, 906 P.2d 531].)

Defendant was charged with the felony murder of Yvonne Los. Because he was not the perpetrator, the prosecution proceeded on theories of aiding and abetting and conspiracy. Defendant asserts that the evidence supported instructions for the lesser included offense of second degree felony murder based on a target offense of discharging a firearm in a grossly negligent manner. (§ 246.3.) He also contends the jury could have determined that Los was killed during an intentional but unpremeditated shooting, thus constituting second degree murder. Finally, he argues he merely furnished a weapon knowing it might be used in a crime. Accordingly, his act “amounts to nothing more than criminal negligence supporting a voluntary manslaughter conviction.”

The evidence showed that carjacking was one of the crimes defendant formed his gang to commit. He trained them how to do a carjacking and said any resisting victim was to be shot. Before the Los killing, defendant had already directed two other carjackings by gang members whom he had armed. He had personally carjacked Dale Nonies. On the night of the murder, he told Dearaujo to secure a car and gave him the gun. Defendant specifically said to place the victim in the trunk. He clearly contemplated a robbery, not the mere theft of an unattended vehicle. Defendant intended that the gun be used to commit a carjacking and, if necessary, to shoot the victim. Dearaujo acted on defendant’s direction when he approached the car and pointed the gun at Los. Her killing was manifestly a natural and probable consequence of defendant’s instructions.

No substantial evidence supports defendant’s assertions that he was unaware Dearaujo would use the gun or that he did not share Dearaujo’s purpose. No evidence points to a different intent than Dearaujo’s use of defendant’s gun to commit a carjacking and, if necessary, to shoot a resisting victim. Defendant asserts the jury might have concluded he only intended that Dearaujo obtain a car, not necessarily commit a carjacking. He argues further the jury could have inferred he armed Dearaujo merely for self-defense. There is simply no basis in the evidence for these speculative assertions. As we noted in People v. Mendoza (2000) 24 Cal.4th 130, 174 [99 Cal.Rptr.2d 485, 6 P.3d 150], “[speculation is insufficient to require the giving of an instruction on a lesser included offense.” The fragments of Lyons’s testimony on which defendant relies in no way support the instructions he claims were lacking. For example, to bolster his argument that the shooting was a reflexive and impulsive act rather than a calculated plan to kill, defendant asserts that Lyons testified Dearaujo shot the victim in a panic. In the transcript passages he cites, however, Lyons testified not to Dearaujo’s panic, but to his own. Again, defendant fails to direct us to any substantial evidence supporting a lesser included instruction.

2. Consciousness of Guilt Instructions (CALJIC Nos. 2.03 & 2.06)

Defendant challenges the consciousness of guilt instructions regarding false statements and suppression of evidence (CALJIC Nos. 2.03, 2.06) as “infirm” under various constitutional provisions. (U.S. Const., 5th, 6th, 8th & 14th Amends.) He urges that they permitted the jury to convict him based on improper inferences and were impermissibly argumentative. He alternatively contends that the instructions were unwarranted by the evidence.

We have consistently rejected the challenges defendant advances here. People v. Lopez (2013) 56 Cal.4th 1028 [157 Cal.Rptr.3d 570, 301 P.3d 1177] held that neither CALJIC No. 2.03 nor No. 2.06 is argumentative, nor does either generate an impermissible inference of guilt. (Lopez, at p. 1075.) People v. Watkins (2012) 55 Cal.4th 999 [150 Cal.Rptr.3d 299, 290 P.3d 364] concluded CALJIC No. 2.03 does not direct or compel the drawing of an impermissible inference of guilt. (Watkins, at p. 1028; accord, People v. Stitely (2005) 35 Cal.4th 514, 555 [26 Cal.Rptr.3d 1, 108 P.3d 182]; People v. Holloway (2004) 33 Cal.4th 96, 142 [14 Cal.Rptr.3d 212, 91 P.3d 164].) “Each challenged instruction made clear that the jury ‘may’ consider certain described conduct as a circumstance tending to prove consciousness of guilt, but each also cautioned that such conduct is not sufficient by itself to prove guilt, and that the weight or significance of the conduct, if any, constituted matters for the jury’s consideration.” (Watkins, at p. 1027.) “These conclusions apply with equal force to the case before us and defendant provides no persuasive reason for reconsidering the issue.” (Lopez, at p. 1075.)

Moreover, there was ample evidentiary support for the instructions. There was evidence defendant made false and misleading statements to police about his involvement in the murder. “[T]he instruction applied based on defendant’s inconsistent and contradicted statements to police attempting to minimize involvement in the capital crime.” (People v. Stitely, supra, 35 Cal.4th at p. 555; see People v. Kelly (1992) 1 Cal.4th 495, 531 [3 Cal.Rptr.2d 677, 822 P.2d 385].) Similarly, there was evidence defendant subsequently gave the murder weapon to Anthony Post, who then disassembled it. (See People v. Hart (1999) 20 Cal.4th 546, 620-621 [85 Cal.Rptr.2d 132, 976 P.2d 683] [citing cases involving disposal or attempted disposal of weapons].)

3. Jury Query Regarding Liability of Principals for Aiding and Abetting Purposes

Defendant contends the trial court responded inadequately to a jury inquiry. He asserts the trial court’s response violated his rights under various constitutional provisions. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., §§ 1, 7, 15, 16 & 17.) The claim is meritless.

During their deliberations, the jurors sent out two notes regarding aiding and abetting liability. The first note asked: “Need clarification of the law — [¶] If A-B-C-D were involved in planning and talking about a robbery at one place and B + C started out to the do the crime [but] [t]hey did not do the planned crime but did another crime in the same area, what would A’s status be under the law.” These facts apparently referred to the robbery of the Los Angeles Times distribution center that Dearaujo and Lyons committed after they failed to rob the liquor store as defendant had originally directed. The trial court responded: “In response to your Question # 9, the legal answer is provided in the instructions already provided. The court would refer you to the series on Aiding and Abetting, starting with 3.00. [¶] Note that in your question, whether ‘A’ would be legally responsible for the actual crime ultimately committed would require that the jury unanimously find that the committed crime was ‘reasonably foreseeable.’ That is, an aider and abettor (‘A’ in your hypothetical) is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonable foreseeable offense committed by the person(s) (‘B-C-D’ in your hypothetical) he aids and abets.”

Later the same day, the court received a second note: “I want to know if a person is a principal if the non principal commits a crime is the principal just as guilty of the crime also.” In discussing the note, the court agreed with the prosecutor that the answer to the question was covered by CALJIC No. 3.00. Defense counsel said: “But there are — ,” at which the prosecutor broke in and said, “That one instruction answers that question.” Defense counsel stated, “Yes, well — ,” and the prosecutor continued, “ — which is to what level are principals responsible. Each principal, regardless of the extent or manner of participation, is equally guilty, principals included, and its [sic] defined.” Defense counsel reiterated an earlier objection he had made to all aiding and abetting instructions, including CALJIC No. 3.00 but acknowledged, “that language is in 3.00.” The trial court said, “Okay. Your objection is noted and the answer is to refer to instruction 3.00.” The judge then responded to the jury’s question as follows: “You are referred to Instruction 3.00.”

Defendant contends that the trial court’s response, referring the jury to CALJIC No. 3.00, was inadequate because it did not also refer to CALJIC No. 8.27. Additionally, he asserts the response showed partiality by the court toward the prosecution.

The Attorney General argues the claim is forfeited. The record reveals that during the discussion of the jury’s note defendant renewed his objection to all aiding and abetting instructions, including the one to which the court referred the jury, and the court noted the objection. This is sufficient for us to proceed to the merits of the claim that we reject.

Section 1138 requires the court to answer jury requests for clarification on points of law. “If, however ‘ “the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.” ’ ” (People v. Smithey (1999) 20 Cal.4th 936, 985 [86 Cal.Rptr.2d 243, 978 P.2d 1171].) Defendant does not contend that CALJIC No. 3.00 was an incorrect statement of the law but only that, in addition to that instruction, the trial court should also have referred the jury to CALJIC No. 8.27.

The second note reflects confusion over who qualifies as a principal. A “non principal” cannot commit a crime because, by definition, one who commits a crime is a principal. CALJIC No. 3.00 explains that concept and clarifies that aiders and abettors may be liable as principals, even if they do not directly commit the offense. The instruction was sufficient to clarify the jury’s inquiry.

CALJIC No. 8.27 simply restates those concepts in the context of the particular offense of felony murder. CALJIC No. 8.27 was both read to the jury and given to it in writing. The jury received additional instructions in aiding and abetting as well as the elements of robbery and other substantive offenses. Defendant fails to demonstrate error.

Defendant also argues that in exercising its discretion the court demonstrated partiality to the prosecution. He fails to explain how giving a correct statement of the law, particularly in the absence of a request for augmentation, reflects partiality.

4. Instruction on Natural and Probable Consequences (CALJIC No. 3.02)

There are two distinct forms of aider and abettor liability. “First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117 [108 Cal.Rptr.2d 188, 24 P.3d 1210].) This latter form of liability was the basis of the prosecutor’s theory that defendant aided and abetted the Los murder: he aided and abetted Dearaujo’s carjacking, the natural and probable consequence of which was that Dearaujo shot and killed Los.

The prosecution’s theory was explained in CALJIC No. 3.02, given here: “One who aids and abets another in the commission of a crime is not only guilty of those crimes, but is also guilty of any other crimes committed by a principal which is [.sic] a natural and probable consequence of the crime originally aided and abetted.” The jury was told that before it could convict defendant it had to find “beyond a reasonable doubt that: [¶] 1. The crime . . . of . . . murder [was] committed; [¶] 2. That the defendant aided and abetted [that] crime[]; [¶] 3. That a co-principal in that crime committed the crime[] of . . . murder[;] and [¶] 4. The crime[] of . . . murder [was] a natural and probable consequence of the commission of the crime[] of robbery.”

Defendant contends the natural and probable consequences doctrine as set forth in CALJIC No. 3.02 unconstitutionally imposes criminal liability for mere negligence. (U.S. Const., 5th, 6th, 8th & 11th Amends.) We have previously rejected similar challenges (People v. Richardson (2008) 43 Cal.4th 959, 1021 [77 Cal.Rptr.3d 163, 183 P.3d 1146]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108 [17 Cal.Rptr.3d 710, 96 P.3d 30]) and do so again.

Alternatively, defendant faults the trial court for omitting the following language from the version it gave of CALJIC No. 3.02: “In determining whether a consequence is ‘natural and probable,’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.”

Defendant was tried in 1998. The “objective test” language was added to the instruction by a 2000 revision. (CALJIC No. 3.02 (2000 rev.) (6th ed. 1997).) The trial court’s instruction was a complete and accurate statement of the law. There was no error. Defendant fails to demonstrate that the failure to include a clarification later included by the CALJIC committee rendered the instruction inadequate as given. To the extent defendant could have sought a modification of the instruction to add the “objective test” language, his failure to have done so forfeits any claim of error. (People v. Lang (1989) 49 Cal.3d 991, 1024 [264 Cal.Rptr. 386, 782 P.2d 627] [“A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party requested appropriate clarifying or amplifying language.”].)

D. Trial Court Responses to Jury’s Requests for Clarification Regarding Law of Conspiracy

Conspiracy, like aiding and abetting, was presented as a theory of defendant’s liability, but was not charged as a substantive offense. “It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator.” (People v. Belmontes (1988) 45 Cal.3d 744, 788 [248 Cal.Rptr. 126, 755 P.2d 310].)

Over defendant’s objection, the jury was given standard conspiracy instructions, including CALJIC No. 6.10.5, which defined the conspiracy as “an agreement between two or more persons with the specific intent to agree to commit the crime of robbery, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement.” The jury was also instructed it “must determine whether the defendant is guilty as a member of the conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged in Counts I through XI was perpetrated by a co-conspirator in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy.” Additionally, the jury was instructed that “[e]ach defendant is individually entitled to, and must receive, your determination whether he was a member of the alleged conspiracy.”

During deliberations, the jury sent a note to the trial court: “When you deal with conspiracies, is every individual crime the start of a new conspiracy or does the conspiracy start at the first crime and every crime after that is just a continuance of the original conspiracy.” The jury’s note did not refer to a particular instruction or count as the impetus for the question.

The trial court, over defendant’s objection, responded: “You, the jury, are to determine from the evidence whether a conspiracy was formed. If you find that a conspiracy was formed, then any crimes committed which you find to be in furtherance of that conspiracy come within the original conspiracy. All of these legal concepts are included in the instructions previously given starting with 6.10.5.”

Defendant contends the trial court’s response was error because, he asserts, whether there was a single conspiracy or multiple conspiracies was a factual question for the jury to decide and the trial court’s response “implied (if not directed)” there was a single conspiracy. According to defendant, “[i]f the jury had been permitted to decide for itself whether there was but one conspiracy or a number of conspiracies, the jury may well have decided the individual conspiracies were narrow in scope — a result likely in [defendant’s] favor.”

The Attorney General argues defendant has forfeited his claim on appeal because defense counsel failed to specifically object to the trial court’s response. During the discussion of the note, defense counsel reiterated his objection to any conspiracy instructions because the substantive offense of conspiracy had not been charged. Moreover, defense counsel specifically objected when the court proposed telling the jury “if you find that a conspiracy was established, then any crime committed that is in the furtherance of that conspiracy comes within the perimeters of that conspiracy.” Although defense counsel grudgingly conceded the ultimate response given by the court did not contain “any blatant problems,” he again noted his objection to any conspiracy instructions. We assume these objections were sufficient to preserve the issue on appeal. The claim fails on its merits.

Defendant cites decisions of the Court of Appeal for the proposition that the number of conspiracies is a factual question for the jury. As he concedes, however, the lower court is split on this question. (Compare People v. Jasso (2006) 142 Cal.App.4th 1213 [48 Cal.Rptr.3d 697] with People v. Liu (1996) 46 Cal.App.4th 1119, 1133 [54 Cal.Rptr.2d 578].) Moreover, these decisions involved conspiracy as a charged offense. Where the crime of conspiracy is charged, the factual question of whether there was a single conspiracy or multiple conspiracies raises questions of jury unanimity and whether the evidence will sustain single or multiple convictions. (See, e.g., Jasso, at pp. 1220-1223.) Where, however, conspiracy is a theory of liability and not a charged offense, these considerations do not arise. We need not resolve that conflict in the different context of this case.

We disagree with defendant’s assertion that the trial court’s response to the question directed the jury to find that only one conspiracy existed. To the contrary, the reference to “a conspiracy” in the first two sentences of the response would not have foreclosed the jury from determining there were multiple conspiracies. Also significant was the trial court’s reference in the third sentence to the conspiracy instructions previously given. As noted, those instructions informed the jury it must determine whether defendant was a member of a conspiracy for purposes of counts 1 through 11. These instructions allowed the jury to consider whether there was a single conspiracy encompassing all counts or whether each count was the fruit of its own conspiracy. In short, the trial court’s response did not remove from the jury its ability to determine for itself whether there was one conspiracy or multiple conspiracies.

Further, it would have made no difference even if some jurors understood the court’s response in the manner claimed by defendant. Even were we to assume the jury understood the note in the manner defendant urges, any error would have been harmless. There was overwhelming evidence that defendant either actively participated in or instigated every crime committed by the Pimp-Style Hustlers. Whether the jurors concluded there was a single conspiracy encompassing multiple counts or that each count constituted a separate conspiracy, the result would have been the same. There is no reasonable probability of a more favorable verdict had the jury been explicitly instructed that it was to determine the number of conspiracies. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

Finally, defendant contends “[t]he jury should have been instructed to agree unanimously whether there was a single or multiple conspiracies.” We have previously rejected that argument when a count of conspiracy has not been charged but the doctrine is merely relied upon as a theory of culpability for the crimes for which the defendant is on trial. (People v. Valdez (2012) 55 Cal.4th 82, 153-154 [144 Cal.Rptr.3d 865, 281 P.3d 924]; People v. Prieto (2003) 30 Cal.4th 226, 251 [133 Cal.Rptr.2d 18, 66 P.3d 1123].)

E. Excusal of Juror No. 10 During Deliberations

Defendant asserts Juror No. 10 was improperly dismissed during deliberations, violating his rights under various federal constitutional provisions. (U.S. Const., 5th, 6th & 14th Amends.) The claim fails.

1. Background

During deliberations the court and counsel met with Juror No. 10, at her request. The juror’s driver’s license was suspended. She wanted to know if jury duty counted as community service because she otherwise feared she would be unable to drive to court. The court advised her to take it up with the traffic court. On her way out, the juror asked, “What is not deliberating? If you don’t have comments, is that considered not deliberating?” The court replied:. “Not deliberating is just what it sounds like. A person just sits there with their, figuratively with their arms closed, and they just don’t discuss the case or the law with other jurors. It’s like they have pulled away and they won’t talk about it period.” After the juror left, the prosecutor expressed some concern with the trial court’s answer. The court recalled the juror to correct any misimpression. The court said, “[T]he appropriate response should have been that if the jury has a question regarding the subject, the foreperson should direct a note to the Court in this regard and then the Court would address to the jury as a whole the subject. . . rather than an individual going back and saying, well, the Court told me such and such, which would be improper.”

Three days later, on the 10th day of deliberation, Juror No. 10 called in sick. When contacted by the court clerk about whether she would appear the next day, Juror No. 10 said she would call in that afternoon. Later, she telephoned to say she would probably not be in the next day. The bailiff, meanwhile, reported that the other jurors wanted to talk to the court about Juror No. 10’s absence. The jurors appeared to be quite agitated. After some discussion with counsel, the trial court directed the foreman to send a note about the jury’s concerns.

In response, the foreman wrote: “Regarding juror number 10[.] She does not pay attention to discussion, she appears to be asleep most of the time, doesn’t participate [,] constantly has an attitude towards others. [¶] Furthermore, we’ve completed the written voting on counts 1-11. She has been seen writting [sic] information on paper [and] taking it out with her to lunch. When she returns from lunch she changes her opinion on how she voted and has questions on the legal terminology. This has happened more than once. Upon her return from lunch she mentioned at the table that ‘my lawyer can put holes in this interview.’ [¶] She has also stated that she wants to prolong this due to the fact that she doesn’t want to return to work. This unnecessary delay has caused financial hardship on juror number 11. [¶] There is [sic] a number of issues that other jurors would like to discuss with you. Sorry for the inconvenience. [¶] Juror #3 4/1/98.”

The prosecutor argued that the note showed misconduct and suggested that the court talk to the foreman and then to Juror No. 10 the following day. Defense counsel agreed.

The foreman, Juror No. 3, told the court the jury’s procedure was to go around the table so each juror could speak. He reported that, while other people spoke, Juror No. 10 had her eyes closed. When it came her turn to speak, she would announce she had nothing to say. When asked by the court if Juror No. 10 was asleep, Juror No. 3 responded that she would ask questions about subjects they had just finished discussing. Juror No. 3 said, while he had never seen it, other jurors reported that Juror No. 10 made notes to herself and, when she returned from lunch, would want to revisit counts she had already voted on and would bring up technical questions. When Juror No. 3 would ask her to write down her thoughts so other jurors could discuss them, she would “clam[] up.” He reported that “[w]hen she disagrees, we try to find out why she disagrees and she won’t tell us ... . She just says my opinion is this and that’s it.” He also reported that Juror No. 10 said she wanted the trial to go on as long as possible. Other jurors believed it was because she did not want to go back to work and perhaps intended to file a “stress case” with her employer.

Under questioning by the prosecutor, Juror No. 3 reiterated that attempts by other jurors to solicit Juror No. 10’s reasons for her positions were met with statements like, “ ‘Because I believe, because this is the way I believe,’ but she doesn’t give a reason why she belie