People v. Tran CA3

Filed 1/30/14 P. v. Tran CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C067416

Plaintiff and Respondent, (Super. Ct. No. 09F00911)

v.

TUAN HUY TRAN,

Defendant and Appellant.

A jury found defendant Tuan Huy Tran guilty on one count of sexual penetration
by a foreign object of an unconscious victim. On appeal, defendant contends: (1) the
trial court erred by denying the defense motion to dismiss or to impose sanctions against
the prosecution for destroying material evidence; (2) the trial court erred by dismissing
Juror No. 2 and Juror No. 8 for misconduct; and (3) the trial court abused its discretion by
denying the first and second motions for mistrial based on the jury’s failure to reach a
verdict. As none of the contentions has merit, we affirm.

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 FACTS
On the evening of January 31, 2009, victim Christina and her friend, Phong Le,
went to a house party in Elk Grove at the residence of defendant Tuan Huy Tran.
Christina had never met defendant before and had never been to his house. Phong was
the only person Christina knew at the party. Shortly after arriving at the party, Christina
began consuming large amounts of vodka and beer. She soon became intoxicated and
nauseated. Christina went into the bathroom and threw up in the toilet and bathtub for
about one hour. Afterwards, because she was still intoxicated, dizzy, and tired, she went
into a bedroom, lay down on a bed, got under the covers, and fell asleep.
After sleeping for about two hours, Christina awoke to see her brother James and
Phong Le in the bedroom with her. James and Phong attempted to get her out of bed to
take her home, but she refused. Christina appeared irritated, did not want to move, and
just wanted to sleep. Unable to walk very well on her own, she refused an offer to be
carried out of the bedroom by James and Phong. James and Phong decided to return for
her the next morning, and Christina lay back down on the bed and went to sleep. James
and Phong returned to Phong’s house in West Sacramento.
After sleeping for approximately one hour after James and Phong left, Christina
woke up to find defendant’s hand down her pants and his finger in her vagina. She did
not consent to this touching. Christina immediately pushed defendant away and moved
away from him. Defendant then grabbed Christina’s hand and placed it on his semierect
penis, but Christina pulled her hand back. At about the same time, another partygoer,
Mary, who was looking for playing cards, pushed open the partially closed door and
called out defendant’s name multiple times. Defendant got up out of bed and left the
bedroom.
Christina then left the bedroom, called her brother James, and explained to him
what had happened. She sounded flustered and was crying. James told Christina that he
would come and get her, and then he called the police. Christina waited outside the

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house for her brother to arrive. While outside she was approached by Lam Dao, a good
friend of defendant, and she explained to him what had happened. Lam took Christina
back inside the house to wait for James. While waiting inside the house, defendant
approached Christina and asked her if she was okay. Christina responded, “Yeah.”
Shortly thereafter, officers arrived on scene, and Christina explained what had
happened. She identified defendant as the perpetrator. Defendant was arrested and
transported to the police station for questioning by Officer Joerg Schwarzenberg.
PROCEDURE
The district attorney charged defendant by information with one count of sexual
penetration by a foreign object of an unconscious victim. (Pen. Code, § 289, subd. (d).)
A jury found defendant guilty as charged. The trial court (1) suspended imposition of
sentence and placed defendant on five years’ probation on condition he serve 365 days in
jail and (2) ordered defendant to register as a sex offender. (Pen. Code, § 290.)
Defendant appeals.
DISCUSSION
I
Motion to Dismiss or Sanctions for Destruction of Evidence
Defendant contends that the trial court erred by denying the defense motion to
dismiss or to impose sanctions against the prosecution for destruction of material
evidence. The contention is without merit.
A. Relevant Procedure
During trial, defense counsel filed a motion to dismiss or, in the alternative, to
impose lesser sanctions based on a claim that the prosecution had destroyed exculpatory
material evidence in bad faith, in violation of California v. Trombetta (1984) 467 U.S.
479 [81 L.Ed.2d 413] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [102
L.Ed.2d 281] (Youngblood). The motion was based on Officer Winston Gin’s actions
when defendant was being interrogated. Officer Gin disposed of the cotton swabs after

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he used them on defendant’s hands as a ruse to get defendant to believe he was collecting
DNA evidence.
Officer Gin testified at the evidentiary hearing that he decided to use a ruse in an
attempt to get the defendant to confess. He took some gauze and swabs from the police
department’s medicine cabinet and found a manila envelope from somewhere, with the
intention of pretending to collect DNA evidence. He then took defendant’s hand and
swabbed each finger with a different cotton swab. On cross-examination, Officer Gin
was asked whether he put each swab into a separate manila envelope, and he replied that
he could not remember. While swabbing defendant’s fingers, Officer Gin told defendant,
“I’m going to be swabbing each of your fingers. The person’s DNA is going to be left
and if you’re truly innocent, then there won’t be any of her DNA on your fingers.
Correct? [¶] . . . [¶] And if we do find DNA . . . then it’s going to show that you’re a
liar and that she’s telling the truth. Correct?” Officer Gin encouraged the defendant to
tell the truth. During the ruse, defendant did not make an incriminating statement.
Officer Gin never intended to collect DNA from the defendant, but rather intended
to trick him into confessing. He had never received training in the collection of DNA
evidence, and had never personally collected DNA. He did not believe the swabs had
evidentiary value, so he threw the cotton swabs and envelope in the trash.
Marc Taylor testified at the hearing for the defense as an expert in the transfer and
collection of DNA. He testified that he would expect to detect the presence of DNA on a
person’s finger if that person had inserted his finger into a vagina and had not washed his
hands afterwards. The amount of DNA present would depend on how vigorously the
finger was wiped afterwards and whether any secretions had dried. Taylor stated that
using a wet swab would be more efficient in the collection of DNA than a dry swab. He
further testified that he would expect to find a transfer of DNA despite not using a rape
kit.

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 Defendant testified at the hearing that he did not wash or wipe his hands during
the time period between the incident and the police interrogation.
The trial court denied defendant’s motion to dismiss, holding that the defense
failed to show that the discarded swabs had apparent exculpatory value at the time of
destruction, as required under Trombetta, and that there was no bad faith, under
Youngblood.
B. Analysis
Defendant contends that the trial court erred by denying the defense motion to
dismiss. He claims that Officer Gin destroyed material evidence that would have
benefited the defense. Defendant argues that: (1) the prosecution had a duty to preserve
the swabs as material exculpatory evidence, and (2) the swabs were discarded in bad
faith.
In Trombetta, the court stated: “Whatever duty the Constitution imposes on the
States to preserve evidence, that duty must be limited to evidence that might be expected
to play a significant role in the suspect’s defense. To meet this standard of constitutional
materiality [citation], evidence must possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.” (Trombetta,
supra, 467 U.S. at pp. 488-489, fn. omitted.) Defendant claims that the exculpatory value
of the swabs was apparent at the time of the investigation because if the swabs did not
contain the victim’s DNA, then the defendant might be telling the truth. Defendant,
however, wants us to assume there was no DNA on the swabs. Without further testing, it
is impossible to know whether there was or was not DNA evidence on the swabs. Since
it is impossible to know without testing whether there was DNA evidence on the swabs,
we cannot logically assume now that the evidence was exculpatory.
Defendant further claims that the trial court erred when it failed to inform the jury
that, had the swabs been retained, the swabs would have lacked the victim’s DNA taken

5
from defendant’s fingers. Again, defendant wants us to assume there was no DNA on the
swabs. Since the swabs were discarded by Officer Gin and were never tested, it is
impossible for this court to determine wither DNA evidence was or was not on the swabs.
Therefore, the exculpatory value of the swabs was not apparent before the evidence was
discarded. Since we hold that the exculpatory value was not apparent, we need not
decide the second prong in Trombetta, whether the evidence is “of such nature that the
defendant would be unable to obtain comparable evidence by other reasonably available
means.” (Trombetta, supra, 467 U.S. at p. 489.)
As stated in Youngblood, the defendant must show bad faith on the part of the
police if the exculpatory value of the evidence is not apparent. “[R]equiring a defendant
to show bad faith on the part of the police both limits the extent of the police’s obligation
to preserve evidence to reasonable bounds and confines it to that class of cases where the
interests of justice most clearly require it, i.e., those cases in which the police themselves
by their conduct indicate that the evidence could form a basis for exonerating the
defendant. We therefore hold that unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.” (Youngblood, supra, 488 U.S. at p. 58.)
The court stated in a footnote: “The presence or absence of bad faith by the police
for purposes of the Due Process Clause must necessarily turn on the police’s knowledge
of the exculpatory value of the evidence at the time it was lost or destroyed. [Citation.]”
(Youngblood, supra, 488 U.S. at p. 56, fn. * [102 L.Ed.2d at p. 288].) Officer Gin
testified that at the time he threw away the cotton swabs, he believed the swabs were of
no evidentiary value. The swabbing of the fingers began as a ruse, as is evidenced by the
haphazard collection of material from the police first aid kit. Once the ruse failed to elicit
an incriminating response from defendant, Officer Gin discarded the swabs. The cotton
swabs had no apparent exculpatory value to Officer Gin when he discarded them.
Defendant merely speculates that, had the cotton swabs been preserved and tested, the

6
victim’s DNA would not have been found on them. That speculation does not support a
finding of bad faith.
Although the cotton swabs were discarded intentionally, there is no evidence that
they were discarded in bad faith. Therefore, the trial court did not err by denying
defendant’s motion to dismiss or to impose sanctions against the prosecution for
destroying material evidence.
II
Dismissal of Jurors
Defendant contends that the trial court erred by dismissing Juror No. 2 and Juror
No 8 for misconduct. Defendant claims that the jurors’ inability to perform as jurors was
not shown as a “demonstrable reality.” The contention is without merit.
A. Applicable Law
A defendant has a constitutional right to a unanimous verdict by a fair and
impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; see also
People v. Engelman (2002) 28 Cal.4th 436, 442.) Consistent with this constitutional
right, a trial court may discharge a sworn juror under some circumstances. Penal Code
section 1089 states in relevant part: “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, . . . the court may
order the juror to be discharged and draw the name of an alternate, who shall then take a
place in the jury box, and be subject to the same rules and regulations as though the
alternate juror had been selected as one of the original jurors.”
“Removing a juror is, of course, a serious matter, implicating the constitutional
protections defendant invokes. 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).) “When a court is informed of allegations
which, if proven true, would constitute good cause for a juror's removal, a hearing is

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required. [Citations.]” (Id. at p. 1051, original italics.) “A trial court facilitates review
when it expressly sets out its analysis of the evidence, why it reposed greater weight on
some part of it and less on another, and the basis of its ultimate conclusion that a juror
was failing to follow the oath.” (Id. at p. 1053.)
A trial court’s decision to remove a juror is reviewed under an abuse of discretion
standard and will be upheld only if that juror’s disqualification appears on the record as a
demonstrable reality. (People v. Wilson (2008) 43 Cal.4th 1, 26 (Wilson I).) “A juror
who conceals relevant facts or gives false answers during the voir dire examination thus
undermines the jury selection process and commits misconduct.” (People v. Wilson
(2008) 44 Cal.4th 758, 823-824 (Wilson II).)
“The demonstrable reality test entails a more comprehensive and less deferential
review. It 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 bias was established. It is important
to make clear that a reviewing court does not reweigh the evidence under either test.
Under the demonstrable reality standard, however, the reviewing court must be confident
that the trial court’s conclusion is manifestly supported by evidence on which the court
actually relied.” (Barnwell, supra, 41 Cal.4th at pp. 1052-1053, original italics.) We
consider the evidence on which the trial court relied, and the trial court’s express
statement of reasons, affording deference to the trial court’s firsthand observations and
credibility determinations. (Id. at pp. 1052-1053.)
Courts are prohibited from reviewing jurors’ mental processes. Evidence Code
section 1150, subdivision (a) states: “Upon an inquiry as to the validity of a verdict, any
otherwise admissible evidence may be received as to statements made, or conduct,
conditions, or events occurring, either within or without the jury room, of such a
character as is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict or concerning the mental

8
processes by which it was determined.” However, “[b]y its very language, this section
applies only to postverdict inquiries into how error or misconduct had affected the juror
in reaching the verdict. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 771, 838.)
The court in People v. Cleveland (2001) 25 Cal.4th 466 (Cleveland) stated:
“Many of the policy considerations underlying the rule prohibiting post-verdict inquiries
into the jurors’ mental processes apply even more strongly when such inquiries are
conducted during deliberations.” (Id. at p. 476.) The court noted that the “need to protect
the sanctity of jury deliberations, however, does not preclude reasonable inquiry by the
court into allegations of misconduct during deliberations.” (Ibid.) The court went on to
state: “Although the provisions of Evidence Code section 1150 apply only to the
postverdict situation and not to an inquiry conducted during jury deliberations, [many
cases] support our conclusion that a trial court’s inquiry into possible grounds for
discharge of a deliberating juror should be as limited in scope as possible, to avoid
intruding unnecessarily upon the sanctity of the jury’s deliberations.” (Cleveland, supra,
25 Cal.4th at p. 485.)
B. Dismissal of Juror No. 2
At the beginning of trial and again at the conclusion of evidence, the trial court
instructed the jury in relevant part: “Do not let bias, sympathy, prejudice, or public
opinion influence your decision in any way. You must reach your verdict without any
consideration of punishment.”
After approximately four days of deliberation, Juror No. 5 prepared a note
claiming that Juror No. 2 had prejudged the case and was focused on the punishment
rather than the evidence, in violation of the trial court’s orders. Juror No. 5 sent the note
to the trial court expressing the concerned view of some jurors:
“Your Honor. [¶] It is a concern of multiple jurors that one juror may not be
keeping an open mind regarding the deliberation discussion and your previous direction.

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 “It is a concern that this juror is considering what we ‘don’t have’ or ‘haven’t been
presented with’ to make his decision instead of following your instructions provided
yesterday (Monday 9/27/10).
“In addition it is our concern that this juror is focusing on the consequence, label
and punishment in which the defendant may recieve [sic] if found guilty of the felony
charge, and has stated as such. We also feel that he entered the deliberation with his
mind made up and not keeping an open mind.
“Please provide direction as to if this is acceptable. We feel that we have made
progress with our discussion but also feel that because of the above stated we cannot
progress any further.
Thank you:
[Juror No. 5]”
The trial court examined Juror No. 5 on the record. Juror No. 5 explained that
Juror No. 2 had repeatedly stated that the defendant would be forever labeled a “sexual
freak,” and believed that Juror No. 2 had entered deliberations with his mind already
made up. Juror No. 5 believed that Juror No. 2 was focused on the punishment and had
never discussed the case with an open mind.
Other jurors were then questioned by the court on the record. Juror No. 1 also
believed that Juror No. 2 was focusing on the consequence, label, and punishment in
violation of the court’s order. Juror No. 1 testified that Juror No. 2 had stated on multiple
occasions, including the first day of deliberation, that he refused to label someone a sex
offender and have him go through the rest of his life with that label. Juror No. 1 also
testified that on the first morning of deliberations, Juror No. 2 stated that his mind was
made up and that he had not seen enough evidence to change his mind.
Juror Nos. 3, 4, 6, and 7 told the trial court that they believed Juror No. 2 had been
focused on the consequences, label, and punishment and had his mind already made up.
Juror Nos. 3 and 4 confirmed that Juror No. 2 used the label “sexual freak” or “sex freak”

10
multiple times. Juror No. 9 believed that Juror No. 2 had entered deliberations with his
mind already made up.
The trial court then questioned Juror No. 2 on the record. Juror No. 2 admitted
using the term “sexual freak” during jury deliberations. When the trial court asked Juror
No. 2 if he had focused on the consequence, label, and punishment, Juror No. 2 repeated
the court’s question. When the trial court told Juror No. 2 that the question called for a
“yes” or “no” answer, Juror No. 2 denied focusing on punishment only. Juror No. 2
denied that his mind was made up when he entered the jury deliberation room.
After arguments from both sides, the trial court stated in relevant part: “Well, I
would like the record to reflect that I did find [Juror No. 2’s] demeanor to be quite
different from the way it was during voir dire. [¶] During the voir dire, he responded to
questions very directly. He was not equivocal. He was engaging. . . . [¶] When he was
just in here, his responses were quite different. He at times responded to the Court’s
questions by saying ‘I may have,’ ‘I am not sure,’ ‘I don’t know.’ And I did not find him
to be direct in responding to the Court’s question about his using the label ‘sexual freak.’
[¶] And then to have him define what sexual freak means to him, to say that it is
referring to someone, not what a normal person does in bed. Well, how in the world does
that have anything to do with this case? Not what a normal person does in bed. [¶] The
proof is from these jurors who heard him use that label on more than one occasion, and it
appears from their testimony at least three times. [¶] . . . [¶] I feel that testimony
impeaches [Juror No. 2]. [¶] . . . [¶] I do believe that [Juror No. 2] has violated the
Court’s instructions on numerous occasions, and I do find that he was not forthright in
responding to the Court’s questions this afternoon. And given his misconduct, I am
going to excuse him from this jury.”
Defendant claims that the trial court erred in dismissing Juror No. 2 because the
record does not support, by a “demonstrable reality,” the removal of the juror. We
disagree.

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 Juror No. 2 violated the trial court’s instructions by focusing on the consequence,
label, and punishment rather than on the evidence. Juror No. 5’s note written to the trial
court along with the testimony of Juror Nos. 1, 3, 4, 5, 6, and 7 establish that Juror No. 2
was impermissibly focused on the label and consequences of a guilty verdict. On
multiple occasions during deliberations, Juror No. 2 stated that he refused to label the
defendant a “sexual freak” without DNA evidence. And Juror No. 2 admitted using the
term “sexual freak.” Based on this evidence, the trial court concluded that Juror No. 2
had violated its instruction not to consider punishment.
Defendant cites Wilson II, supra, 44 Cal.4th 758 for the proposition that jurors are
allowed to use their personal experience and observations to fill in the blanks in the
evidence. However, this is not a juror filling in the blanks with his personal experiences
because he admittedly was focused on matters the trial court instructed him not to focus
on.
Multiple jurors testified that Juror No. 2 made numerous statements during
deliberations such as: “ ‘[defendant will] be known as a sexual freak’ ”; and “ ‘I am not
gonna label somebody a sex offender and have him go through the rest of his life with
that label’ ”; and “ ‘sex freak’ ”; and “ ‘sexual predator.’ ” Therefore, it was a
“reasonable inquiry” for the trial court to determine whether Juror No. 2 had committed
misconduct, and the inquiry was “limited in scope” to these statements. (Cleveland,
supra, 25 Cal.4th at pp. 476, 485.) There was a demonstrable reality that Juror No. 2
focused on the consequence, label, and punishment and repeatedly, even expressively,
violated the trial court’s instructions. Therefore, the trial court did not err when it
dismissed Juror No. 2 for misconduct.
C. Dismissal of Juror No. 8
During jury selection, defense counsel asked prospective jurors, apparently those
seated in the jury box: “Is there anybody here who’s been falsely accused of something?
And I don’t just mean married people who have been falsely accused by their spouse,

12
something semi-serious, maybe a crime. Nobody? [¶] Have you ever had to defend
yourself against an accusation? Nobody? Not even the teachers?” After these questions,
one of the prospective jurors mentioned that he had been accused of things he did not do
with respect to construction arbitrations. The prospective juror said that he would feel
“put upon” if he was falsely accused of the things involved in this case.
Later when Juror No. 8 was in the jury box, defense counsel said: “I’m going to
obviously try to pare down the number of questions I asked. Everybody here, I’m sure,
heard my line of questioning with all of the potential jurors. [¶] Just off the bat, is there
anything that you want to raise your hand about that you – I think you got a sense of what
I’m looking for, what I’m concerned about. [¶] Is there anybody who feels there’s
something they should say right off the bat?”
Well into deliberations, two days after Juror No. 2 was dismissed, the jury
reported to the trial court that they were “ ‘locked in a[t] 11-1. The “1” has stated they
will not change mind, based on evidence provided.’ ” The trial court urged further
deliberations and surveyed the jury to determine whether further measures would help the
jury reach a verdict. In response to the survey, the holdout juror, Juror No. 8 sent a note
to the trial court, “ ‘Your Honor, May I please speak to you about some concerns about
deliberations. Thank you. Juror [No.] 8.’ ”
Juror No. 3 also wrote a note to the trial court which stated: “ ‘Your Honor, [i]t
was revealed to us today that one of our jury members has had the experience of being
falsely accused of sexual harassment by a female co-worker. His demeanor during his
description of the incident causes me to doubt his openness to witness testimony. He has
also stated that he feels that the witness is to blame (for being drunk) at least in part, but
my main concern is that his previous experience has influenced his ability to follow all of
your instructions. Thank you, Juror [No.] 3.’ ”
The trial court first examined Juror No. 1 on the record. Juror No. 1 stated that
Juror No. 8 revealed that he had been falsely accused of sexual harassment and, because

13
of that, Juror No. 8 was having a difficult time finding defendant guilty. Juror No. 8
further stated in deliberations that he was suspended from work for two weeks, without
pay, while the matter was being investigated.
The trial court then questioned Juror No. 8. He admitted that a sexual harassment
claim had been made against him at work five or six years earlier. Juror No. 8
acknowledged that he had discussed this sexual harassment claim with other jurors, but
claimed that he did not remember being asked a question during jury voir dire regarding
false accusations or allegations. Juror No. 8 claimed to be unaware that this information
would have been responsive to questions asked during jury selection.
The trial court reviewed the record of voir dire and the specific questions asked
regarding prior experiences before it made its decision to dismiss Juror No. 8. Following
oral arguments by the parties, the trial court ruled that Juror No. 8 had failed to disclose
responsive information and had intentionally concealed that he had been falsely accused
of sexual harassment.
The trial court stated: “The Court’s ruling is as follows: [Juror No. 8] failed to
disclose responsive information. He concealed that he had been falsely accused of sexual
harassment. [¶] It is clear from reviewing the transcripts that false allegations, especially
of a sexual nature, were responsive and should have been disclosed during the voir dire
process. [¶] I have read the transcript. I have considered [Juror No. 8’s] demeanor and
his answers in court on Thursday. I have also considered whether [Juror No. 8’s]
nondisclosure was merely inadvertent or unintentional.
“I have read the points and authorities and look particularly to the cases cited by
[defense counsel]: People versus McPeters at 2 Cal.4th 1148 (1992) and People versus
Cleveland.
“(As read:) A juror’s intentional concealment of relevant facts or of giving false
answers during the voir dire examination constitutes misconduct and raises a presumption
of prejudice. (End of reading.) [¶] . . . [¶]

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 “Here, there is substantial evidence that [Juror No. 8] committed misconduct
during voir dire. Counsel asked the panel of prospective jurors whether anyone had ever
been falsely accused of something semiserious like a crime and had to defend themselves
against that accusation. [¶] Juror [No. 8] was in the room and presumably heard the
question. [¶] Later, after [Juror No. 8] was seated in the jury box for voir dire, the Court
asked:
“(As read:) So let me ask, have any of you or has any member of your family or
close friend to your knowledge ever been investigated for, arrested for or charged with a
crime involving alleged unlawful touching of any kind? If so, please raise your hand. [¶]
(End of reading.)
“Juror [No. 8] did not respond. He was subsequently sworn in as a juror. [¶] . . .
[¶] When [Juror No. 8] denied remembering being asked about false accusations during
voir dire given the nature of the charges and the questions posed during voir dire, the
juror’s denial was not credible.
“I find that [Juror No. 8] did intentionally conceal the fact that he had previously
been falsely accused of sexual harassment which constituted misconduct and gives rise to
a presumption of prejudice.
“There is no evidence either presented by the parties or after the Court’s own
review of the record to show that the misconduct has not or could not likely cause actual
harm.
“To the contrary, there is affirmative evidence that the misconduct has caused
actual harm in that [Juror No. 8’s] prior experience has prevented him from being fair and
impartial to both parties.
“Good cause appearing that [Juror No. 8] is unable to perform his duty, he is
therefore discharged and he will be replaced with an alternate juror.”
Defendant contends that Juror No. 8 should not have been dismissed because his
failure to mention a sexual harassment allegation in jury voir dire was not nonresponsive

15
to questioning about allegations of criminal or serious sexual misconduct. Defendant
states that the court’s voir dire question had to do only with an allegation of criminal
“unlawful touching” and therefore, because the sexual harassment allegation was a civil
matter, involving workplace verbal sexual harassment only, defendant contends that it
would not be reasonable for a person to believe that it called for a response under the
circumstances. We disagree.
The trial court held that Juror No. 8 had intentionally concealed relevant facts
during voir dire. A juror who concealed relevant facts or gave false answers during jury
voir dire, may have committed misconduct, and may be dismissed. (Wilson II, supra, 44
Cal.4th at pp. 823-824.)
In reviewing the record, we find that the trial court did not abuse its discretion.
During voir dire, defense counsel asked if anyone had been falsely accused of anything
and had to defend against those false accusations. Although Juror No. 8 was not in the
box at the time, later, when Juror No. 8 was in the box, defense counsel asked if anyone
had any answers for her prior questions. That clearly related to, among other things,
counsel’s questions about having been falsely accused and having to defend against those
accusations. The trial court validly concluded that Juror No. 8 had intentionally
concealed this information.
We agree with the trial court that Juror No. 8’s misconduct was shown by a
demonstrable reality, and therefore, the trial court did not err by dismissing Juror No. 8
for misconduct.
III
Motions for Mistrial
During trial, at two separate times, defense counsel moved for mistrial. Both
motions were denied. On appeal, defendant argues that the trial court abused its
discretion by denying each motion for mistrial. Defendant also argues that the trial
court’s supplemental jury instructions sentenced the jury to “indefinite deliberations,”

16
and that the trial court delivered an impermissible Allen-type or “dynamite” jury
instruction rather than a permissible “firecracker” jury instruction. (Allen v. United States
(1896) 164 U.S. 492, 501-502 [41 L.Ed. 528, 531]). We disagree with the defendant’s
view of the instructions.
A. Applicable Law
We approved the so-called “firecracker” jury instruction in People v. Moore
(2002) 96 Cal.App.4th 1105, 1118-1122 (Moore) to direct the jury to continue
deliberations in an effort to reach a verdict. We stated: “In [Allen], the Supreme Court
approved a charge (the Allen charge) which encouraged the minority jurors to reexamine
their views in light of the views expressed by the majority, noting that a jury should
consider that the case must at some time be decided. In People v. Gainer (1977) 19
Cal.3d 835 (Gainer), however, our state high court disapproved of Allen in two respects.
The Gainer court found ‘the discriminatory admonition directed to minority jurors to
rethink their position in light of the majority’s views’ was improper, inasmuch as, by
counseling minority jurors to consider the majority view, whatever it might be, the
instruction encouraged jurors to abandon a focus on the evidence as the basis of their
verdict. (Gainer, at pp. 845, 848.) The second issue with which the Gainer court took
issue was the direction the jury ‘ “should consider that the case must at some time be
decided,” ’ noting such a statement was inaccurate because of the possibility the case
might not be retried. (Id. at pp. 851-852.) In other words, it is improper to instruct the
jury in language that suggests that if the jury fails to reach a verdict the case necessarily
will be retried. (Ibid.)” (Moore, supra, 96 Cal.App.4th at pp. 1120-1121; see also
People v. Remiro (1979) 89 Cal.App.3d 809, 817-820.)
In Moore, we held that the “firecracker” instruction was a valid instruction
because “[t]he trial court did not direct the jurors that ‘the case must at some time be
decided.’ ” (Moore, supra, 96 Cal.App.4th at p. 1121.) Instead, the trial court
“instructed that the ‘goal as jurors should be to reach a fair and impartial verdict if you

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are able to do so based solely on the evidence presented and without regard to the
consequences of your verdict [or] regardless of how long it takes to do so.’ ” (Ibid.,
original italics.) We continued: “Nothing in the trial court’s charge was designed to
coerce the jury into returning a verdict. [Citations.] Instead, the charge simply reminded
the jurors of their duty to attempt to reach an accommodation. [¶] Additionally, the court
directed the jurors to consider carefully, weigh and evaluate all of the evidence presented
at trial, to discuss their views, and to consider the views of their fellow jurors. Finally,
the court instructed that it was their duty as jurors to deliberate with the goal of arriving
at a verdict on the charge ‘if you can do so without violence to your individual
judgment.’ ” (Moore, supra, 96 Cal.App.4th at p. 1121, original italics.)
B. First Motion for Mistrial
On the second day of deliberation, the jury requested suggestions from the trial
court stating that the jury had voted and that the votes were split. In response, the trial
court surveyed the jury for a numerical breakdown of those votes. According to the jury,
the first vote was three to nine and the third vote was six to six. The trial court ordered
the jury to continue deliberating since the majority of time spent deliberating, up to this
point, dealt with the read back of trial testimony. After deliberating less than two
additional days, the jury advised the trial court that they were holding firm at 10 to two.
Defendant made a motion for mistrial based on the jury’s failure to reach a verdict. The
prosecution requested that the trial court give the “firecracker” instruction, and over
defendant’s objection, the trial court did so.
The trial court delivered the “firecracker” instruction stating: “It has been my
experience on more than one occasion that a jury, which initially reported that it was
unable to reach a verdict, was ultimately able to arrive at a verdict. To assist you in your
further deliberations, I am going to instruct you further as follows:

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 “Your goal as jurors should be to reach a fair and impartial verdict, if you are able
to do so, based solely on the evidence presented and without regard for the consequences
of your verdict, regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh, and evaluate all of the
evidence presented at the trial, to discuss your views regarding the evidence, and to listen
to and consider the views of your fellow jurors.
“In the course of your further deliberations, you should not hesitate to reexamine
your own views or to request your fellow jurors to reexamine theirs. You should not
hesitate to change a view you once held if you are convinced it is wrong or to suggest
other jurors change their views if you are convinced they are wrong. Fair and effective
jury deliberations require a frank and forthright exchange of views.
“As I previously instructed you, each of you must decide the case for yourself, and
you should do so only after a full and complete consideration of all of the evidence with
your fellow jurors.
“It is your duty as jurors to deliberate with the goal of arriving at a verdict on the
charge, if you can do so without violence to your individual judgment.
“Both the People and the defendant are entitled to the individual judgment of each
juror. As I previously instructed you, you have the absolute discretion to conduct your
deliberations in any way you deem appropriate. May I suggest, however, that since you
have not been able to arrive at a verdict using the methods you have chosen, that you
consider changing the methods you have been following, at least temporarily, and try
new methods.
“For example, you may wish to consider having different jurors lead the
discussions for a period of time, or you may wish to experiment with reverse role playing
by having those on one side of an issue present and argue the other side's position and
vice versa. This might enable you to better understand the other's positions.

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 “By suggesting you should consider changes in your methods of deliberations, I
want to stress I am not dictating or instructing you as to how to conduct your
deliberations. I merely believe you might find it productive to do whatever is necessary
to ensure that each juror has a full and fair opportunity to express his or her views and to
consider and understand the views of the other jurors.
“I also suggest you re-read instructions 200, 220, and 3550. These instructions
pertain to your duties as jurors and make recommendations on how you should deliberate
and to the burden of proof. The integrity of a trial requires that jurors at all times during
their deliberations conduct themselves as required by the instructions.
“Instruction 200 defines the duties of a juror. The decision the jury renders must
be based on the facts and the law. You must determine what facts have been proved from
the evidence received in the trial and not from any other source. A ‘fact’ is something
proved by the evidence or by stipulation.
“Second, you must apply the law I state to you to the facts as you determine them,
and in this way arrive at your verdict.
“You must accept and follow the law as I state it to you regardless of whether you
agree with the law. If anything concerning the law said by the attorneys in their
arguments, or at any other time during the trial, conflicts with my instructions on the law,
including the instruction I am now giving you, you must follow my instructions.
“Instruction 3550 defines the jury's duty to deliberate.
“The decisions you make in this case must be based on the evidence and the
stipulations received in the trial and the instructions given by the Court. These are matters
this instruction requires you to discuss for the purpose of reaching a verdict. This
instruction recommends how jurors should approach their tasks. You should keep in
mind the recommendation this instruction suggests when considering the additional
instructions, comments, and suggestions I have made in the instructions now presented to
you.

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 “Instruction 220 defines proof beyond a reasonable doubt.
“I hope that these comments and suggestions may be of some assistance to you.
You're ordered to continue on with your deliberations at this time. If you have other
questions, concerns, requests, or any communications you desire to report to me, please
put those in writing, have them signed and dated by your foreperson or by one of you,
and please notify the bailiff. Thank you.”
Defendant contends the trial court’s supplemental jury instruction to continue
deliberating, displaced the independent judgment of the jury. Defendant argues that the
court “effectively delivered an Allen-type instruction in this case.” The record does not
support this. To the contrary, the trial court gave the approved “firecracker” instruction
from Moore effectively verbatim. Just as the trial court in Moore instructed the jury, the
trial court here instructed: “Your goal as jurors should be to reach a fair and impartial
verdict, if you are able to do so, based solely on the evidence presented and without
regard for the consequences of your verdict, regardless of how long it takes to do so.”
Nothing in the trial court’s charge coerced the jury to return a verdict. Since the trial
court delivered the “firecracker” instruction approved in Moore, we hold that the trial
court did not abuse its discretion by denying the first motion for mistrial.
C. Second Motion for Mistrial
After the trial court removed Juror No. 2 for misconduct and a replacement was
sworn in, the court instructed the jury to begin their deliberations anew. The next day the
jury sent a note stating it was “ ‘locked in a[t] 11-1.’ ” The court surveyed the jury to
determine what if anything, would help the jury reach a verdict. The trial court
eventually removed Juror No. 8 for misconduct as discussed above. Defendant made a
second motion for mistrial, which was denied. After another alternate juror was sworn
in, the court instructed the jury to begin their deliberations anew, and a verdict was
reached later that afternoon.

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 On appeal, defendant argues that the trial court erred by denying the second
motion for mistrial based on the jury’s inability to reach a verdict. However, as the
record reflects, defendant’s second motion for mistrial at trial was not based on the jury’s
failure to reach a verdict. To the contrary, defense counsel’s motion for mistrial was
based on the trial court’s ruling that Juror No. 8 had committed misconduct. At trial,
defense counsel stated: “And given the Court’s ruling that [Juror No. 8] has basically
caused a trial that has been unfair and partial to both parties, at this time I would move
for a mistrial. [¶] It is my position that if the Court finds [Juror No. 8] has engaged in
such misconduct, this goes to the heart of the trial itself, not just to one side or the other.
And given that [defendant] has that fundamental right to a fair trial and that this alleged
juror misconduct has appeared to have wreaked havoc in the juror deliberation room, it
has so affected the jury deliberation process that a mistrial must be declared.”
An issue on appeal is forfeited by the failure to make a timely objection on the
same grounds in the trial court. (In re Seaton (2004) 34 Cal.4th 193, 198.) Although
defendant made a timely second motion for mistrial in the trial court, his contention on
appeal raises a different issue. In the trial court, defendant claimed the misconduct of
[Juror No. 8] tainted the trial, but on appeal he claims deliberations were allowed to
continue for too long. That contention on appeal is forfeited because it was not raised in
support of the second motion for mistrial.
In any event, the contention is without merit. Although deliberations had gone on
for several days, it was reasonable to have deliberations continue to verdict, as they did
not long after the juror who committed misconduct was excused. (See People v. Bell
(2007) 40 Cal.4th 582, 616.)

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 DISPOSITION
The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

ROBIE , J.

MURRAY , J.

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