Full Opinion

Filed 10/26/26 P. v. Turman CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D085513 Plaintiff and Respondent, (Super. Ct. No. SCD294340) v. LEASHAYE TURMAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent. A jury found Leashaye Turman guilty of certain offenses but mistrials were declared on two counts and a gang allegation. After retrial, the jury failed to reach a verdict as to one count and acquitted him of another count. Before retrying the gang allegation, the trial court dismissed Juror No. 12. The reconstituted jury found the gang allegation true. On appeal, Turman argues the true finding on the gang allegation should be reversed because the trial court erred in: (1) failing to conduct a proper inquiry into possible juror misconduct; and (2) dismissing Juror No. 12. We agree with Turman’s assertions and reverse the true finding on the gang allegation. FACTUAL AND PROCEDURAL BACKGROUND Because the parties are familiar with the facts, and Turman does not challenge the sufficiency of the evidence supporting the true finding on the gang allegation, we provide a summary of the proceedings leading to the discharge of Juror No. 12. Turman was charged with robbery with personal use of a firearm (count 7) and two counts of receiving stolen property (counts 8 and 9) regarding an armed robbery at a gas station. He was also charged with multiple counts relating to a drive by shooting at a home, including: attempted murder (count 1); evading an officer with reckless driving (count 2); being a felon in possession of a firearm (count 3); possessing ammunition by a person prohibited from owning a firearm (count 4); shooting at an occupied vehicle (count 5); and shooting at an inhabited dwelling house (count 6). A jury found Turman guilty on counts 2, 3, 4, 6, and 7. With respect to count 5, the jury found him not guilty of shooting at an occupied vehicle but 2 guilty of the lesser included offense of shooting a firearm in a grossly negligent manner. The jury also found true firearm allegations attached to counts 6 and 7. The jury was unable to reach a verdict on counts 1, 8, and 9, and the court declared a mistrial on those counts. At a bifurcated trial on the gang allegation attached to count 6, the jury was unable to reach a verdict, and the court declared a mistrial. The People retried Turman on counts 1 and 9.1 After closing arguments, the jury started deliberating but did not reach a verdict. The following morning, Juror No. 12 called the court clerk stating he “wasn’t coming back because of too many biases and the defendant not having a fair trial.” The clerk informed Juror No. 12 that she would inform the judge and attorneys and call him back. Juror No. 12, however, appeared and continued deliberations. The parties did not object to proceeding with Juror No. 12 as part of the jury panel. The jury found Turman not guilty on count 9 but was unable to reach a verdict on count 1. The foreperson explained that three votes were taken, and the split was 11 to 1 each time. Accordingly, the court declared a mistrial as to count 1. In a bifurcated trial, Turman was retried on the gang allegation attached to count 6. Before start of the bifurcated trial, Juror No. 12 got the court’s attention and the following exchange occurred: “THE COURT: Yes. Juror No. 12, do you want to talk to us privately or in front of all the other jurors? “JUROR NO. 12: Yeah, probably privately. But I guess basically what I’m trying to say is that I don’t think I can continue to serve on the jury. “THE COURT: [¶] . . . [¶] Would you like to talk to us privately about that without the presence of the other 1 Prior to the second trial, the court dismissed count 8. 3 jurors? But before you do, before you answer that, you know yourself better than we will ever know you. As you sit there, do you think you could give the prosecutor a fair trial and do you think you could give Mr. Turman a fair trial? “JUROR NO. 12: At this point, I don’t think I can.” The court held an unreported sidebar conference. After the conference, the court excused Juror No. 12 and replaced him with an alternate juror. During a break in the proceedings, the court put on the record the discussions during the sidebar conference. The defense wanted to talk to Juror No. 12 or have the court talk to him regarding why he felt Turman could not receive a fair trial. The court denied the request because the question improperly invaded the jury’s deliberations. Defense counsel objected to the dismissal of Juror No. 12, arguing there needed to be further inquiry because Juror No. 12 indicated some jurors were exhibiting bias and Turman was not receiving a fair trial. She believed the court needed to investigate because Juror No. 12’s statements suggested this juror was the holdout preventing a conviction and other jurors had possibly committed misconduct. Counsel argued Turman was not able to receive a fair trial based on the discharge of Juror No. 12 and moved for a mistrial. The prosecutor pointed out that Juror No. 12 said he could not be fair to either side and did not mention other jurors. The court denied the motion for a mistrial. The reconstituted jury found the gang allegation attached to count 6 true. The court sentenced Turman to 23 years to life on count 6 and the attached allegations. The court also sentenced him to a total determinate term of eight years for the remaining counts. 4 DISCUSSION Turman asserts the trial court erred by failing to conduct an inquiry. He claims Juror No. 12’s allegation that “too many biases” prevented Turman from “having a fair trial” and put the trial court on notice of potential juror misconduct. He further contends the presumption of prejudice applies and cannot be overcome by the People. He also maintains the court committed prejudicial error by discharging Juror No. 12 because the record does not show to a demonstrable reality that this juror was unable to continue to perform his duties. Alternatively, if this court concludes neither error, standing alone, warrants reversal, Turman argues reversal is required under the cumulative error doctrine because the court’s failure to investigate his allegations of bias and its erroneous discharge of Juror No. 12 compounded one another. He argues these errors created a substantial possibility that he was denied a fair trial on the gang allegation because one or more of the remaining jurors may have deliberated based on bias and prejudice, while the juror who reported the possible misconduct was erroneously removed from the jury. The right to an unbiased and unprejudiced jury is part of the constitutional right to a trial by jury. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1312.) “ ‘A sitting juror’s actual bias, which would have supported a challenge for cause, renders [the juror] “unable to perform [his or her] duty” and thus subject to discharge and substitution . . . .’ ” (People v. Lomax (2010) 49 Cal.4th 530, 589 (Lomax).) “ ‘Actual bias’ in this context is defined as ‘the existence of a state of mind on the part of the juror . . . [that would] prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.’ ” (People v. Nesler (1997) 16 Cal.4th 561, 5 581.) Under Penal Code2 section 1089, “[i]f at any time, . . . , a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears . . . , the court may order the juror . . . discharged. . . .” “When a court is informed of allegations which, if proven true, would constitute good cause for a juror’s removal, a hearing is required.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051 (Barnwell).) “ ‘Grounds for investigation or discharge of a juror may be established by his [or her] statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.’ ” (Lomax, supra, 49 Cal.4th at p. 588.) “A distinction must be made, of course, between a juror who cannot fairly deliberate because of bias and one who, in good faith, disagrees with the others and holds his or her ground.” (Barnwell, at p. 1051.) “ ‘[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. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court’s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists.’ ” (Id. at p. 1054.) We review the trial court’s decision to discharge a juror under section 1089 for an abuse of discretion under the heightened “demonstrable reality” test, which entails a more comprehensive and less deferential review than the substantial evidence test. (People v. Armstrong (2016) 1 Cal.5th 432, 450 2 Undesignated statutory references are to the Penal Code. 6 (Armstrong).) This 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 [good cause for removing the juror is] established.’ ” (Ibid.) In determining whether the juror’s inability to perform his or her duty appears in the record as a demonstrable reality we do not reweigh the evidence. (Id. at p. 451.) Under the demonstrable reality standard, the record must give us confidence that the trial court’s conclusion is “manifestly supported” by the evidence on which it actually relied. (Ibid.) In making that determination, we consider both the evidence itself and the reasons the court articulated for its conclusion. (Ibid.) The first issue is whether Juror No. 12’s statement to the court clerk that he was not returning because “of too many biases and the defendant not having a fair trial,” if true, constituted good cause for a juror’s removal. If the answer to that question is “yes,” a hearing was required. (Barnwell, supra, 41 Cal.4th at p. 1051.) The People argue no investigation was necessary because Juror No. 12’s vague reference to “too many biases” did not put the court on notice that good cause existed to discharge any juror. They further assert the record contains no evidence that Juror No. 12 understood the legal meaning of “bias.” Rather, this complaint simply conveyed Juror No. 12’s disagreement with the other jurors with respect to count 1 and his frustration at being the lone holdout. Here, Juror No. 12 called the court clerk and stated he “wasn’t coming back because of too many biases and the defendant not having a fair trial.” Nonetheless Juror No. 12 appeared, and the jury continued deliberations. The court addressed the matter with counsel and parties did not object to 7 proceeding with Juror No. 12 as part of the jury panel.3 The trial court expressed no concern when it learned from the court clerk that Juror No. 12 had alleged juror bias and Turman not receiving a fair trial. Thereafter, the jury found Turman not guilty on count 9 but hung on count 1. At the time he called the court clerk and complained about “too many biases,” Juror No. 12 had participated in deciding counts 1 and 9 and was thus aware that bias must not influence a juror. (CALCRIM No. 200.) He had also been instructed regarding implicit or unconscious bias. (CALCRIM No. 209.) Accordingly, the People’s contention that Juror No. 12 did not understand the legal meaning of “bias” is unpersuasive. Juror No. 12’s allegation that other jurors were “biased” is serious because a sitting juror’s actual bias renders the juror unable to perform his or her duty and subject to discharge and substitution. (Lomax, supra, 49 Cal.4th at p. 589.) Thus, accepting Juror No. 12’s allegation as true for purposes of determining whether an inquiry was required, the court had good cause to doubt the ability of one or more jurors to perform their duties, and a hearing was required to investigate Juror No. 12’s allegation. (Barnwell, supra, 41 Cal.4th at p. 1051.) The trial court, however, failed to make any inquiry into the factual basis of Juror No. 12’s allegation of juror bias and Turman not receiving a fair trial.4 This constituted an abuse of discretion. 3 Turman did not forfeit his claim by failing to request additional inquiry because the court has a duty to investigate when it possesses information that might constitute good cause to remove a juror even if the defendant objects to such an inquiry. (People v. Cowan (2010) 50 Cal.4th 401, 506.) 4 While inquiring into possible juror misconduct during deliberations is a delicate matter, the inquiry may be properly conducted by focusing on the jurors’ conduct rather than the substance of their deliberations. (Barnwell, supra, 41 Cal.4th at p. 1054.) 8 The second issue is whether Juror No. 12’s statement to the court that he did not “think” he could provide Turman a fair trial established to a “demonstrable reality” the need for his removal. (Armstrong, supra, 1 Cal.5th at p. 450.) The timing and context of this statement are critical, yet the People largely ignore both. The jury deliberated for approximately one and a half hours after closing arguments but was unable to reach a verdict. The following morning, Juror No. 12 called to tell the court clerk he would not return “because of too many biases and the defendant not having a fair trial.” Nonetheless, Juror No. 12 appeared and continued deliberating without incident. The jury subsequently reached a not guilty verdict on count 9 after approximately one and one-half days of deliberations but consistently hung on count 1 by a vote of 11-1. The prosecutor stated that Juror No. 12 appeared to be the lone holdout on count 1, a point with which the trial court agreed and which the parties acknowledge on appeal. After the court informed the jury it needed to decide an additional issue, Juror No. 12 immediately got the court’s attention and asked to speak privately about continuing to serve on the jury. Instead of honoring Juror No. 12’s request to speak privately, the trial court acknowledged knowing about Juror No. 12’s earlier statement to the court clerk. It then asked Juror No. 12 whether he could be fair to both parties, and Juror No. 12 responded equivocally, “I don’t think I can.” Without asking follow-up questions to clarify the meaning of that response, the court excused Juror No. 12 and replaced him with an alternate juror. We find People v. Jones (2020) 50 Cal.App.5th 694 (Jones) instructive. In Jones, after the jury began deliberating, Juror No. 10 left the jury room and told the courtroom clerk that another juror revealed information during 9 deliberations about the defendant’s criminal history. (Id. at p. 698.) Juror No. 10 felt “ ‘extremely upset’ ” and “ ‘somewhat coerced’ ” by the event because the other juror revealed the information after Juror No. 10 had expressed reservations about the charges. (Id. at p. 701.) The trial court asked if “ ‘it would be very difficult for you to continue in your deliberations,’ ” to which Juror No. 10 replied, “Yes.” (Ibid.) Finding that Juror No. 10 had expressed “ ‘an inability to continue deliberating,’ ” the trial court dismissed Juror No. 10. (Id. at p. 699.) The Jones court concluded the record did not show, as a demonstrable reality, that Juror No. 10 was unwilling to continue deliberating. (Jones, supra, 50 Cal.App.5th at pp. 704–705.) “Juror No. 10 never requested to be discharged, nor did she ever say she was unwilling or unable to continue deliberating.” (Id. at p. 701.) Also, the trial court never directly asked Juror No. 10 whether she could continue. (Id. at p. 702.) Rather, the court asked her if it would be “ ‘very difficult’ ” for her to continue, which invited an “equivocal” response—“Juror No. 10 could have meant she was incapable of continuing to deliberate, or she could have meant she was capable of continuing to deliberate but it would be hard to do so.” (Ibid.) When a juror’s answer is ambivalent, the court is “ ‘not entitled to . . . presum[e] the worst.’ ” (Ibid.) Similarly here, Juror No. 12 never requested to be discharged, nor did he express an unwillingness to continue deliberating. Rather, he responded “I don’t think I can” when asked whether he could be fair to both parties. The equivocal response followed Juror No. 12’s earlier report of juror bias and his assertion that Turman was not receiving a fair trial. On this record, the court had no basis for determining whether Juror No. 12’s response reflected an actual inability to be fair, concern about the conduct of other jurors during 10 deliberations, or some other circumstance bearing on his ability to continue serving. The court’s failure to ask even a single follow-up question left that critical ambiguity unresolved. Under the heightened standard governing review of a trial court’s decision to discharge a juror, the record does not provide the requisite confidence that the court’s conclusion was “manifestly supported by evidence on which the court actually relied.” (Barnwell, supra, 41 Cal.4th at p. 1053.) Accordingly, the trial court abused its discretion in discharging Juror No. 12 because the record does not establish as a demonstrable reality that he was unable to perform his duties as a juror. The erroneous discharge of Juror No. 12 requires reversal. (Armstrong, supra, 1 Cal.5th at p. 454.) However, this reversal does not create a double jeopardy bar to retrial of the gang allegation. (Ibid.) DISPOSITION The true finding on the gang allegation is reversed. In all other respects, the judgment is affirmed. The sentence is vacated and the matter is remanded for a full resentencing. O’ROURKE, J. WE CONCUR: MCCONNELL, P. J. DO, J. 11