People v. DeSouza CA3

Filed 10/28/26 P. v. DeSouza CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C103981 Plaintiff and Respondent, (Super. Ct. No. 24FE008335) v. MARCUS ANTHONY DESOUZA, Defendant and Appellant. A jury found defendant Marcus Anthony DeSouza guilty of assault with a deadly weapon and misdemeanor assault. The court sentenced defendant to the middle term of three years on the assault with a deadly weapon count and 180 days concurrent on the misdemeanor assault. On appeal, defendant contends the trial court erred in removing a juror. We agree and reverse. FACTUAL AND PROCEDURAL BACKGROUND I. Factual Background On the night of May 10, 2024, A.F. was sitting on the bumper of her car in a supermarket parking lot and scrolling on her phone. Defendant was in the parking lot, standing by his car and yelling at people driving by. Defendant yelled at A.F. not to stand behind his car. A.F. said she was not standing behind defendant’s car and told him to stay away from her. Defendant continued to yell at A.F. and hit her in the face and 1 chest area. A.F. called her fiancé C.G., who was in the store, and defendant knocked the phone out of her hand. A.F. picked up the phone and told C.G. defendant had hit her. A bystander called 911. C.G. ran out of the store and confronted defendant. Defendant backed up but then smashed a glass bottle on a shopping cart rack. Defendant came towards C.G. making slashing and stabbing motions with the broken bottle. When C.G. said he was going to stand where he was and fight, defendant ran away across the parking lot and C.G. followed. C.G. caught up to defendant at a nearby bus stop. After defendant fell, he grabbed C.G.’s shirt and swung the bottle at him. C.G. struck defendant on the side of the head. Defendant ran towards a fast-food restaurant. C.G. picked up a piece of wood and threw it at defendant. When the police arrived, C.G. walked away. II. Trial Court Proceedings A. Trial Testimony At trial, A.F. testified defendant was yelling “for no reason” at cars and people in the parking lot. When C.G. arrived, defendant continued “yelling crazy stuff” at A.F. But A.F. did not see C.G.’s altercation with defendant partly because someone else was yelling at A.F. and telling her that defendant “has a mental illness.” C.G. also described defendant’s behaviors and demeanor as “erratic” 11 times in his testimony. The prosecutor made no objection to these portions of A.F.’s and C.G’s testimonies. The jurors were instructed to: (1) decide the facts based on the evidence presented at trial, not let bias influence their judgment, and follow the law as the trial court explained to them (CALCRIM No. 200); (2) evaluate the testimony alone, using their common sense and experience (CALCRIM No. 226); (3) give witness opinions whatever weight they think is appropriate (CALCRIM No. 333); and (4) consider each count separately (CALCRIM No. 3515). To find defendant guilty of the charged crimes, they must conclude he: (1) acted with wrongful intent when committing the prohibited acts 2 (CALCRIM No. 250); and (2) committed the prohibited acts willingly or on purpose (CALCRIM Nos. 875 & 960). B. Dismissal During deliberations, the jury sent a note that it had reached a decision on one count and was deadlocked on the other count. The next day, the trial court stated it had been informed that Jurors Nos. 10 and 12 asked the bailiff what to do if a juror is not following the court’s instructions. These jurors reportedly said, “Juror No. 11 … said she’s refusing to follow the Judge’s instructions, will not change her mind no matter what.” The court concluded “there may be an issue with the juror who’s just refusing to deliberate,” which prompted the court to “exercise my discretion and investigate it.” The court questioned Juror No. 10 outside the presence of other jurors. Juror No. 10 stated: “We were looking at all the evidence and recalling testimony and Juror No. 11 said, without a doubt, no matter what was said, even if [the court] spoke to her, that she would not change her mind, because she has prior experiences with mental health issues. [¶] And she said, nothing will change her mind. She will be a ‘no’. And it was … 1 to 11 of us.” The trial court asked if Juror No. 11 was deliberating. Juror No. 10 responded: “She just kept saying that no matter what we – We reviewed the videos. We discussed our notes. [¶] She said, ‘No one can change my mind. I’m firm.’ ” Asked by the court if Juror No. 11 explained why, Juror No. 10 responded: “Because she said that she had prior experience with individuals with mental health issues and that no matter what we said would change her mind.” Juror No. 10 added, “And we did talk. [¶] Some of the other jurors were, like, ‘Well, what if’ – you know, ‘You’re supposed to not use your prior experience, you’re supposed to use the evidence provided and that only.’ [¶] And she said, ‘You’re not changing my mind.’ ” Juror No. 10 then left and the court brought in Juror No. 12. Juror No. 12 stated: “There’s specific bias that one of the jurors – I believe it’s Juror No. 11 who’s being 3 biased. [¶] We read one the … guidelines that you handed us … on the paper. And I personally read it to her and she’s, like, ‘Oh, well, I didn’t know that. Well, I’m still gonna disregard it anyway, because I’m still biased.’ [¶] And I was, like, ‘Okay. Well, if the Judge orders you to overlook that specific piece, would you be able to give a verdict fairly?’ [¶] And she’s, like, ‘No. Well, everyone is biased somehow.’ ” Juror No. 12 confirmed that Juror No. 11 used the word “biased.” Juror No. 12 could not remember the specific instruction read other than “[i]t was that we should treat everyone fairly.” Asked if Juror No. 11 was deliberating, Juror No. 12 said, “She is. She is. Um, we’ll give her facts. We’ll present them, um –why we think this is – it should not take into play. [¶] And she will just refuse. She’ll be, like, ‘Well, I’m not gonna change my mind regardless.’ [¶] So she even stated, like, ‘Well, we can just go undecided because I don’t want to waste anyone’s time.’ ” Juror No. 12 could not recall the specific instruction she read to Juror No. 11. The trial court identified the instruction as CALCRIM No. 200 that provided in relevant part, “It is up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial.” After Juror No. 12 left, the trial court said, “I worry about this. [¶] There wasn’t a mention of mental health but mental health is not an issue in the case. And I don’t think it’s appropriate for Juror No. 11 to be considering the [d]efendant’s mental health issues, which it sounds like that’s exactly what she’s – I mean we can bring her in and hear from her. [¶] But it sounds like she’s saying, ‘I heard something about mental health and I’m not gonna vote’ – that ‘that’s gonna impact my vote no matter what.’ [¶] And I’m not sure that’s appropriate in this case, because I told them to – There is no evidence of his mental health. That wasn’t – And I almost contemplated giving an instruction that said, ‘Whatever you heard about mental health, that’s not an issue. It’s not a defense.’ [¶] … It’s not appropriate for them to consider mental health considerations.” 4  Defense counsel suggested the trial court either instruct the jury pursuant to the firecracker instruction or instruct the jury to consider only the charges at issue. 1 But the trial court expressed concerns over Juror No. 12’s report that Juror No. 11 refused to follow CALCRIM 200. It considered a firecracker instruction futile: “Fine. Firecracker. ‘Go back in.’ [¶] But if she says to me: ‘I’m sorry, Judge, but once I hear mental health, I’m just done. I am never gonna reach a verdict when I hear there’s – even if I hear there’s a possibility of mental health, I’m not gonna reach a verdict.’ [¶] I don’t think that’s an appropriate consideration. That’s not in evidence. That’s not a fact you consider. [¶] … [¶] … I’m troubled by the fact that [Juror No. 11]’s hooked into [] mental health, because there was no evidence of mental health. [¶] There was no mental health expert. … There’s no mental health defense. So [Juror No. 11] thinks [defendant] suffered from mental health issues – And he may well be – had been suffering mental health issues. [¶] Not for this jury to decide. There could have been a Mental Health Diversion. I mean, that – that’s not for this jury to decide. That – That ship has sailed.” In response, defense counsel suggested the trial court inform the jury that there were no expert witnesses to testify regarding defendant’s mental issues. The trial court reiterated that there had been no expert evidence of mental illness, just an “offhand comment,” based on which, Juror No. 11 might think defendant ‘ “seemed to be exhibiting mental illness.’ ” The trial court then brought in Juror No. 11. The trial court said to Juror No. 11: “There seems to be an issue with a mental health bias on your part, that … you’ve got a hang-up with mental health and that’s impacting … the way you’re gonna vote ….” 1 A “firecracker” instruction directs the jury to continue deliberations in effort to reach a verdict. (People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1122; People v. Whaley (2007) 152 Cal.App.4th 968, 979-985.) 5  Juror No. 11 responded: “Um, I guess I’ve – I have family that have mental issues and I don’t – So I guess that is affecting my – my view.” The trial court said: “Okay. Well, let me … tell you this: It’s not a defense in this case. [¶] I haven’t instructed you that it’s a defense. [¶] … [¶] You haven’t heard any evidence other than, perhaps, one lay witness saying something about mental health. … [¶] There’s been no evidence that at any time the Defendant was suffering from mental health, he was affected by mental health … There’s no evidence that mental health had anything to do with this case.” The court asked Juror No. 11 if she could “set aside [her] experiences with mental health and decide this case based on the facts[.]” The court explained, “[I]f your answer is: ‘Well, maybe [defendant] did that but there’s some mental health issues and I – I just can’t get over that,’ then … that’s what I kinda need to know. [¶] So what do you think about that?” Juror No. 11 responded: “Um, I can’t say that it hasn’t affected how I view things but I was looking at the evidence and … basing … how I would vote on … [¶] … [¶] … the evidence, statements of several people who … were talking about … what behavior they had seen.” The trial court asked: “But did I hear you say, but mental health is still in there …[?]” Juror No. 11 responded: “Well, your life experiences affect … how you see things. [¶] But I didn’t think that that was affecting … my views in the room. I thought they were based on the evidence from [the] witnesses.” The trial court concluded its inquiry with the following question: “Did you make a comment to one of the other jurors that: Look, even if the Judge told you, you couldn’t consider mental health, that it wouldn’t change anything – it wouldn’t change your vote?” Juror No. 11 responded: “I may have said that but it’s hard to – it’s – when people are questioning you, it’s hard to, you know, separate how you feel from what – what is – what your actions actually are.” After Juror No. 11 left, the trial court said: “I guess my concerns are not really assuaged.…[Juror No. 11] admitted mental health is part of her deliberations. She 6 admitted it’s still there. She would not commit to excluding it entirely. She admitted she told another juror she wouldn’t follow my instructions, although, obviously, it’s … tough for her. She did sort of dance around that a little bit. [¶] But I think under [Penal Code section] 1089, I have good cause to excuse her. I have no confidence that she is going to do her job, as she’s supposed to do by law, and decide this case on the facts and not on evidence that is not there. [¶] I mean, I get her point. Okay: ‘It’s part of my life experiences, I’m gonna take it into consideration.’ [¶] And all that would be fine if there was a mental health defense, if we had mental health experts, if we had someone come up and say, ‘Well, this is – this is why he did it, he was suffering from mental health [issues].’ Fine. [¶] She’s basically now sort of an expert in the room or using her own expertise, adding in evidence that isn’t in this case, to decide that his actions … are not sanctionable under the law. [¶] And I don’t know how … that’s not good cause to excuse her.” The trial court then excused Juror No. 11 over the defense’s objection, finding that Juror No. 11 was considering evidence she should not consider, would not or could not separate her vote from consideration of such evidence, and admitted that she told other jurors that she would not disregard such evidence even if the court told her to. An alternate juror was sworn in to replace Juror No. 11. The reconstituted jury found defendant guilty on both counts. Defendant filed a motion for new trial on two grounds, including that the trial court erred in removing Juror No. 11. The court denied the motion because Juror No. 11 “indicated to the [c]ourt that she was going to continue to not follow the [c]ourt’s legal instructions in her deliberations.” DISCUSSION Defendant contends the trial court improperly removed Juror No. 11 in the absence of a demonstrable reality that Juror No. 11 was unable to perform her duties. We agree. 7  Although we review a trial court’s removal of a juror for abuse of discretion, “a somewhat stronger showing than what is ordinarily implied by that standard of review is required. Thus, a juror’s inability to perform as a juror must be shown as a ‘demonstrable reality’ [citation], which requires a ‘stronger evidentiary showing than mere substantial evidence.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 821.) Under this standard, “the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.) In doing so, we consider both the evidence and the record of reasons the trial court provides. (Ibid.) When the evidence bearing on the question whether a juror has exhibited a disqualifying bias is in conflict, we defer to the trial court’s factual and credibility determinations. (Ibid.) “The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis … is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts … is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.” (People v. Cleveland (2001) 25 Cal.4th 466, 485.) It is not misconduct for a juror to interpret evidence based on her own life experience. (People v. Wilson, supra, 44 Cal.4th at p. 830.) In Cleveland, the jurors complained Juror No. 1 “discussed matters that they consider[] ‘irrelevant’ and adopted an ‘unreasonable interpretation’ based on ‘his own personal opinion,’ while ‘the rest of us have a different interpretation.’ ” (People v. Cleveland, supra, 25 Cal.4th at p. 486.) Our Supreme Court concluded the trial court abused its discretion by dismissing Juror No. 1. (Ibid.) It reasoned, “[i]t is possible that Juror No. 1 employed faulty logic and reached an ‘incorrect’ result, but it cannot properly be said that he refused to deliberate. Juror No. 1 participated in deliberations, attempt[ed] 8 to explain, however inarticulately, the basis for his conclusion that the evidence was insufficient to prove an attempted robbery, and he listened, even if less than sympathetically, to the contrary views of his fellow jurors.” (Ibid.) Here, the record does not support as a demonstrable reality the trial court’s finding that Juror No. 11 was unable to perform her duties. Defendant’s mental health was part of the evidence introduced at trial. A.F. testified defendant was “yelling crazy stuff” and someone told her defendant “has a mental illness.” C.G. repeatedly described defendants’ behaviors and demeanor as “erratic.” As instructed, Juror No. 11 may have given A.F.’s testimony and C.G.’s opinion about defendant’s behavior whatever weight she thought was appropriate and conclude on that basis that defendant did not act on purpose. She may also draw from this evidence and her personal experience with her family member’s mental health issues in making her decision. (See People v. Leonard (2007) 40 Cal.4th 1370, 1414 [a juror may rely on his personal experience with firearms to form an opinion about the accuracy of the murder weapon].) And she apparently successfully did so by reaching a verdict on one of the two assault counts based on the same incident. Juror No. 11 told the trial court she was “looking at the evidence,” and her views during deliberations “were based on the evidence from witnesses,” including “statements of several people … who were talking about … what behavior they had seen.” The trial court did acknowledge A.F. mentioned defendant’s mental health in her testimony. The trial court nevertheless asked Juror No. 11 to “set aside [her] personal experiences with mental health.” But “we must allow … jurors to use their experience in evaluating and interpreting th[e] evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one’s background from one’s analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations.” (People v. Steele (2002) 27 Cal.4th 1230, 1266.) And even if Juror No. 11 misunderstood 9 the defense, incorrectly analyzed the case, or refused to deliberate because she believed further discussion would not change her mind, these are not grounds to dismiss her. (People v. Cleveland, supra, 25 Cal.4th at p. 485.) We disagree with the People that the record supports a demonstrable reality of disqualifying bias by Juror No. 11. “The question of bias … turns not on a common understanding of the word but on a more precise definition, which focuses on whether the juror’s judgment or beliefs about an issue are untethered to the facts presented at trial.” (People v. McGhee (2025) 17 Cal.5th 612, 636.) “The question is not simply whether a juror’s view[] derive[s] from a personal leaning or inclination for or against one side, but rather whether the juror’s view[] and conclusions are based on specific evidence presented in the case.” (Ibid.) Juror No.11’s concerns about mental health were based on trial testimonies by A.F. and C.G. As such, the record does not show a demonstrable reality that Juror No. 11 exhibited an improper bias as to mental health issues warranting her removal. We understand that Juror No. 11’s focus on defendant’s mental health was unexpected and the trial court had to navigate a difficult situation. Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 788.) Evidence of mental illness may not be used to prove the absence of general intent. (People v. Thiel (2016) 5 Cal.App.5th 1201, 1209.) But the prosecutor made no objection to the mental health testimony, and neither side proposed a related jury instruction before deliberations. When it became clear during deliberations that Juror No. 11 noticed and placed significant weight on evidence of defendant’s mental health, the trial court could have clarified to the jurors the law regarding the mental health evidence. (People v. Alexander (2010) 49 Cal.4th 846, 931 [the trial court may properly give supplemental instruction to clarify the law].) The trial court also could have instructed the jurors to disregard defendant’s mental illness in determining his guilt. Instead, it stated defendant’s mental illness was not in evidence and instructed Juror No. 11 to set aside her experiences in 10 making her decision. The trial court’s instructions to Juror No. 11 were factually wrong (that the mental illness issue was not in the evidence) and legally wrong (Juror No. 11 should set aside her personal experience). Some final points in closing. It is true that Juror No. 11 admitted she told a fellow juror she would not follow a hypothetical instruction to disregard the mental health issue. But she also explained the statement did not reflect her action because “when people are questioning you, it’s hard to … separate how you feel from … what is your actions actually are.” We defer to the trial court’s credibility finding that Juror No. 11 “danced around” this issue. (People v. McGhee, supra, 17 Cal.5th at p. 637.) But the trial court dismissed Juror No. 11 for failing to “decide this case on the facts and not on evidence that is not there.” As stated above, the record shows Juror No. 11 evaluated the evidence that was admitted. Under the heightened demonstrable reality standard, we conclude the trial court abused its discretion in dismissing Juror No. 11. (See People v. Wilson, supra, 44 Cal.4th at p. 821 [standard of review].) 11  DISPOSITION The judgment is reversed and the matter remanded for a new trial. /s/ MESIWALA, J. I concur: /s/ WISEMAN, J. * * Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 12  RENNER, J., Dissenting The core problem with the majority opinion is that it does not adequately engage with why the trial court dismissed Juror No. 11. Instead, the majority implies that Juror No. 11 was dismissed merely because she “interpret[ed] evidence based on her own life experience,” or the trial court thought she “incorrectly analyzed the case.” (Maj. opn., ante, at pp. 8, 10.) But these statements are misleading and unhelpful. The trial court dismissed Juror No. 11 because her bias resulted in her express refusal to follow jury instructions, and the record manifestly supports this conclusion. “It is beyond dispute that a juror who cannot follow the court’s instructions because of a personal bias should be discharged under [Penal Code] section 1089.” (People v. Fuiava (2012) 53 Cal.4th 622, 713.) Here, Juror No. 11’s bias and failure to follow the trial court’s instructions were related issues. As the trial court explained, Juror No. 11 “indicated to the Court that she was going to continue to not follow the Court’s legal instructions in her deliberations. [¶] Specifically, she indicated, both through her words, her demeanor and the way she answered the Court’s questions, that even though there was no evidence in the record of the Defendant’s mental health status—that is, no evidence was presented to the jury of his mental status—she could not avoid considering her speculation of the Defendant’s mental health condition and take that into account in her deliberations.” I dissent because I conclude the trial court relied on evidence that, in the light of the entire record, supports these conclusions. As the trial court indicated, there was evidence that supported the conclusion Juror No. 11 had not been following the court’s instructions as a demonstrable reality. Juror No. 12 told the court that Juror No. 11 was biased because, “[w]e read one of the … guidelines that you handed us - - on - on the paper. And I personally read it to her and she’s like, ‘Oh, well, I didn’t know that. Well, I’m still gonna disregard it anyway, because I’m still biased.” (Italics added.) 1  The majority ignores Juror No. 11’s demonstrable refusal to follow the court’s instructions by suggesting that she was somehow reasonably inferring from a reference to an unspecified “mental illness,” “erratic” behavior, “yelling crazy stuff,” and her experience with other people’s mental health issues, that this defendant should be acquitted of one of the two general intent crimes at issue. (Maj. opn., ante, at pp. 9-10.) Whether we can imagine a way that Juror No. 11 could have been following the jury instructions despite her statement to the contrary is not the question before us. Our inquiry ends if “the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.) Here, the trial court’s conclusion that Juror No. 11 was speculating about defendant’s mental health condition is correct based on the limited evidence of the condition. The majority notes the court had not instructed the jury that evidence of mental illness could not be used to prove the absence of general intent. (Maj. opn., ante, at p. 11.) But, Juror No. 12 further explained that when Juror No. 11 was asked, “ ‘if the Judge orders you to overlook that specific piece, would you be able to give a verdict fairly,’ ” she responded, “ ‘No. Well, everyone is biased somehow.’ ” The court clarified that Juror No. 11 had used the word “biased.” (See People v. Fuiava, supra, 53 Cal.4th at p. 713 [“the trial court relied on Juror T.’s statement of his inability to follow the court’s instructions due to his bias as the reason for discharging him. Accordingly, the court relied ‘ “on evidence that, in light of the entire record, supports its conclusion that bias was established” ’ ”].) The court asked Juror No. 11 directly if she had said “even if the Judge told you, you couldn’t consider mental health, that it wouldn’t change anything—it wouldn’t change your vote?” The majority claims to defer to the court’s 2 credibility finding that Juror No. 11 “dance[] around” the issue 1, but ultimately the majority ignores the fact that the court’s concern that Juror No. 11 had not been following instructions and would not follow further instructions was established to a demonstrable reality. (Maj. opn., ante, at p. 11.) For this reason, I dissent. /s/ RENNER, Acting P. J. 1 In claiming to defer to this finding, the majority also minimizes it. The court stated, “She admitted she told another juror she wouldn’t follow my instructions, although, obviously, it’s—it’s tough for her. She did sort of dance around that a little bit.” 3