Filed 8/14/26 P. v. Duran CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B339356
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA099737
v.
HORACIO MATA DURAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Vanessa Place for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and David F. Glassman, Deputy
Attorneys General for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Horacio Mata Duran appeals his convictions for
forcible sex crimes against two separate victims. His sole
contention on appeal is that the trial court improperly discharged
a juror during deliberations. Duran argues that the court
invaded the sanctity of deliberations when conducting its inquiry
of the juror’s misconduct. He also argues that the record did not
support the court’s determination that the juror’s inability to
perform his duties was a demonstrable reality. We reject Duran’s
arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
A. Prosecution case
1. Forcible sex acts against Linda A.
On January 24, 2023, 58-year-old Linda A. lived in a tent
near the intersection of Tuxford Street and San Fernando Road
in Los Angeles, California. At 2:30 a.m., a man later determined
to be Duran woke Linda A. He forcibly inserted his penis into
Linda A.’s anus for five or ten minutes after beating her and
suffocating her by pressing his hand over her nose and mouth.
Duran next forcibly inserted his penis into Linda A.’s vagina.
When Linda A. heard another man outside her tent, she
yelled for help. Duran ran to the tent flap and spoke with Linda’s
friend Ronald Payne or R. Pete,1 saying it was nothing and he
knew Linda. Linda A. ran out of her tent, saying she had been
raped. Duran fled. R. Pete and Linda A. went to tell Linda A.’s
friend Lamar in a nearby tent and called 911.
1 Other portions of the reporter’s transcript also refer to
Ronald Payne as “RP.”
2
2. Forcible sex acts against Shanan A.2
On January 8, 2023, 43-year-old Shanan A. was living in a
tent near San Fernando Road and Tuxford Street. In the early
morning, she went to visit her best friend, Lamar. Out of
nowhere, Duran approached Shanan A. and grabbed her vagina.
She “went off” on him but he ignored her. Shanan A. left to go to
a store.
Shanan A. had to pass by Lamar’s tent on the way back to
her tent. She saw Duran still present. Shanan had a small razor
in her hand. Duran took out a knife and told Shanan A. that he
could cut her too. Lamar appeared and told Shanan A. to leave.
Shanan A. went to her tent.
Duran later appeared outside Shanan A.’s tent. She
grabbed a broom, but Duran punched her in the forehead and jaw
four times. Shanan A. screamed for Lamar and her other friend
Gabriel to help her. Duran put his hand over her nose and
mouth. Shanan A. could not breathe. Duran dragged her to the
bed. He pulled down Shanan A.’s pants and inserted his penis
into her vagina. Shanan A. cried and asked him to stop. She also
told him that she had syphilis and cancer to get him to stop.
Duran told her to shut up. After Duran left, Shanan A. went to
Lamar’s tent to call 911.
2 The reporter’s transcript spells the victim’s name as
Shanon on her first day of testimony and Shanan on her second
day of testimony. But the parties and the information spell her
name as Shanan. To be consistent with the parties, we spell her
name Shanan.
3
3. Police investigation and arrest
On January 25, 2023, LAPD officers stopped Duran
because he and his bicycle matched the descriptions of the
suspect and his bicycle in a crime alert for two rapes that
occurred around San Fernando Road and Tuxford Street.
Data was extracted from Duran’s cellphone. An analyst
processed a video file on the cellphone. The results were
memorialized in a document introduced at trial as People’s 23.
The G.P.S. coordinates of the video on the cellphone indicated
that it was created at the intersection of San Fernando Road and
Tuxford Street. The analyst determined that no changes or
modifications to the video were made. The video depicted a
woman with her legs up and her vagina and anus exposed. A
man in front of the woman touched her vagina with his fingers.
The woman said, “ ‘Please stop. It hurts. Stop.’ ” “ ‘I just want to
be left alone.’ ” The police detectives later showed the video to
Linda A. She recognized her voice and her belongings shown in
the video.
DNA testing of samples from Duran’s right palm and left
fingernail indicated that Duran and Linda A. were likely
contributors.
B. Defense case
Duran testified that he had not met Linda A. or Shanan A.
before trial. He admitted to being around the tent at 1:00 a.m.
“about a day before” his arrest, looking for someone named Largo
to buy marijuana. Duran met a woman named Brittan or
Brittany who knew Largo. After parking his bike, Duran used
drugs with the woman in a tent. Duran passed out. When Duran
woke, he discovered that his cellphone, watch, and money were
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missing. He did not see the woman leave. Duran found his
cellphone in the tent. He also discovered that his bike had been
moved 400 to 500 feet away under a tarp by a trailer.
Duran did not know how the video got on his cellphone. He
denied that his penis was depicted in the video. He did not know
how Linda A.’s DNA got on his hand and fingernail. He also
denied having sex with Shanan A. and Linda A.
Duran testified that when the police detectives first
interviewed him, he said that he went straight home after work,
and he did not tell them that he went to the San Fernando
encampment to buy marijuana. Duran admitted that he lied to
the police. Later, after the detectives told Duran that a sexually
explicit video was found on his cellphone, he told them that he
engaged in consensual sex with the woman. Duran believed that
he had sex with the woman named Brittan or Brittany because
she had mentioned having sex in exchange for money.
C. Inquiry of jurors
1. Notes submitted by Juror 4 about Juror 10
The jury began deliberating on Wednesday, June 12, 2024,
at 2:35 p.m. On June 14, 2024, the jury submitted a note stating,
“We read back [sic] the jury instruction specificly [sic] about
specalation [sic] and what is what [sic] we are here to do. I am
concerned that we will not be able to reach a verdict. Jury [sic]
#9, #10 have a new case theory.” The court read CALCRIM Nos.
200, 201, 220, 222, and 3550 to the jury.
Later that day, the foreperson submitted another note to
the court. The note read:
“Like to request that [Juror] #10 be
dismissed/replaced. Based on that [Juror] #10
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continues to speculate on things that are not
presented or in evidence. #10 would comment on
things like “Why didn’t they track down R. Pete
or any witness to Shanan’s rape.” Another
would say, “Why are there different dates
created on the file for the cellphone.” Also
[Juror] #10 just doesn’t want to follow jury
instructions. Also refuses to accept the phone
video as evidence. Juror #10 also alleges that
the evidence could have been tampered/placed to
frame the defendant. Also believes that there is
extorsion [sic] and that Shanan could have been
a prostitute. I am concerned that we are not
able to have a verdict because of [Juror] #10.
Defense counsel proposed that the court speak with Juror 10 and
the foreperson to ascertain the questions being asked. Defense
counsel further proposed that the court address all the jurors and
tell them to follow the law and not do any outside research. The
prosecutor suggested that the court separately ask each juror
about Juror 10 to determine if he was engaging in misconduct.
The court responded, “I have to be very careful here
because I don’t want to invade the province of jury deliberation as
much as I can avoid doing that and get to the heart of the matter.
That’s my initial balance.”
2. Interview with Juror 4
The court first spoke with Juror 4, the foreperson. Juror 4
confirmed that he wrote the notes to the court. The trial court
cautioned Juror 4 to not reveal “specifics about the context of
[the] deliberations.”
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Juror 4 told the court that Juror 10 did not want to follow
the jury instructions. Juror 4 referred to CALCRIM No. 222 and
stated that Juror 10 “speculate[d] on every single piece of
evidence” and did “not believe that any of the evidence [was]
factual.” Juror 10 was “mak[ing] his own theories about what
[the] witness said” and his discussions “go outside of the
evidence.” According to Juror 4, when Juror 10 was not following
the instructions, the jurors would “always [try] to bring
up . . . the jury instructions to him.”
Juror 4 stated that Juror 10 was participating in the
deliberation process and was “one of the main people that is
talking.” But Juror 10 only talked about “his own theories about
the case, his own facts . . . what he thinks. It’s never about the
facts.” As stated in the note, Juror 4 described as examples that
Juror 10 concluded that someone could have “tampered” with the
evidence to frame Duran or committed “extortion.” Juror 10 also
believed that Shanan A. could have been a prostitute.
The court directed Juror 4 to read CALCRIM No. 300.
Juror 4 stated that he did not think it was violated.
The court concluded the interview by admonishing Juror 4
to not share anything about their interview with the other jurors.
The court decided to speak with each juror to avoid “ganging up
on” Juror 10 and to corroborate the allegations by Juror 4.
3. Interview with Juror 1
When the court began its interview of Juror 1, it explained
that the purpose of the interview was to gather information. The
court directed Juror 1 to not reveal anything about the facts
being discussed in the jury room.
The court read Juror 4’s note to Juror 1. Juror 1 agreed
that the note was accurate. Juror 1 stated that Juror 10 was not
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following the instructions. Juror 1 elaborated that Juror 10 was
speculating and not basing his decision on the evidence. Juror 1
specified that Juror 10 did not follow CALCRIM No. 222 because
he was considering something outside of the evidence. Juror 1
stated that Juror 10 further violated CALCRIM No. 222 by
assuming that a witness was prevented from saying something
important when not permitted to answer a question.
Juror 1 stated that Juror 10 also violated CALCRIM No.
207. Apparently, Juror 10 believed that someone tampered with
the cellphone video evidence because two-time stamps were
placed on the document related to it. Juror 10 believed this was
inconsistent based on his job experience. Juror 1 believed that
Juror 10 also violated CALCRIM No. 226 because he believed a
witness did not understand what they were admitting. Juror 1
concluded that Juror 10 created his own theory of the case that
was not based on the evidence.
Juror 1 additionally referred to CALCRIM No. 300 because
Juror 10 repeatedly questioned why a person was not called as a
witness.
At the conclusion of the interview, the court advised
Juror 1 that it was merely “information gathering.” The court
admonished Juror 1 to avoid speaking about the interview with
the other jurors. The court specifically stated, “So if anybody is
curious or even gives you a look, I don’t want you to telegraph
anything about what we talked about. [¶] . . . [¶] As if you were a
stone wall.”
4. Interview with Juror 2
The court advised Juror 2 of Juror 4’s note and read it to
Juror 2. Juror 2 confirmed that Juror 10 was not following
instructions because he was “speculat[ing] on things that [were]
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not presented or in evidence.” Juror 2 also confirmed that Juror
10 questioned why “RP” or any witnesses to Shanan’s rape were
not called and why different dates were created for the video file
on the cellphone evidence.
Juror 2 stated that Juror 10 did not want to follow the jury
instructions. Before asking Juror 2 to specify any instructions
that Juror 10 did not want to follow, the court informed Juror 2
that it was “trying to avoid . . . invad[ing] . . . in the deliberation
details.” Juror 2 explained that Juror 10 applied his personal
work experience when questioning the validity of the cellphone
video evidence. Juror 2 also described how Juror 10 claimed that
there was a discrepancy in the date of the video file on the
cellphone. The jurors referred Juror 10 to CALCRIM No. 207 and
explained that the proof need not show the actual date.
Juror 2 did not think Juror 10 was refusing to deliberate
but reaffirmed that he was engaging in speculation. Specifically,
Juror 10 speculated about the case involving prostitution.
The court concluded by admonishing Juror 2 to not disclose
anything from the interview to the other jurors, directing Juror 2
to be a “stone wall.” The court stated that the purpose of the
interview was to “gather information without influencing the
jury.”
5. Interview with Juror 3
The court began its interview of Juror 3 by stating, “I want
to be careful because I really . . . I don’t want to get into specifics
of your deliberation. Okay? And it might sound like I am, but I
am going to be very careful to try . . . not to learn what
specifically that went on during the deliberation. I am trying to
focus a little bit.”
9
The court advised Juror 3 of Juror 4’s note and read it to
Juror 3. Juror 3 agreed with the portion of the note that said,
“Juror No. 10 continues to speculate on things that are not
presented or in evidence.” Juror 3 provided the example that
Juror 10 believed that prostitution was involved in the case.
Juror 3 referred to the definition of evidence in CALCRIM
No. 222 and stated that the evidence that was presented to the
jury had nothing to do with the story mentioned by Juror 10. The
other jurors “direct[ed] [him] to stay within the evidence that
[was] presented, the testimony from Linda and Shanan and also
the video and all of the evidence [submitted to the jury.]”
Juror 3 also referred to CALCRIM No. 300 when stating
that Juror 10 asked why Lamar, the friend of one of the victims,
did not testify.
At the conclusion of the interview, the court admonished
Juror 3 to not disclose the interview with the other jurors and to
be a “stone wall.”
6. Interview with Juror 5
At the beginning of the interview with Juror 5, the court
explained that it was “information gathering” and ordered Juror
5 to not share any of the interview with anyone else. During the
interview, the court also explained, “I am trying very hard not to
peak into the jury deliberation process. Okay. I am just trying to
somehow get a sense of what’s going on there without getting too
deep into the specifics. If I want to get more specific, I will do it.”
The court read the note from Juror 4. Juror 5 agreed that
Juror 10 was “speculat[ing] on things that [were] not presented
or in evidence.” Juror 5 stated that Juror 10 was not following
the jury instructions. Juror 5 referred to the part of CALCRIM
No. 220 that states, “The evidence need not eliminate all possible
10
doubt because everything in life is open to possible or imaginary
doubt.” Juror 5 stated that Juror 10 questioned the authenticity
of People’s 23, which was a document related to the cellphone
video evidence. Juror 10 asserted that “the data in there could
have been manipulated. That the file path[s] have different
dates.”
According to Juror 5, Juror 10 was also adamant that
Lamar was sitting in the audience during trial and questioned
why he was not called as a witness. Juror 10’s theory was that
the case involved “a prostitution deal gone wrong.” Juror 10
believed “Shanan could have been a prostitute” and Lamar
“should have been on the stand” because he was a pimp who
could have “beat up the victims.” Juror 5 had concerns that Juror
10 was refusing to follow some of the jury instructions. Juror 10
drew upon his personal knowledge to conclude that the police
could have planted the video on Duran’s cellphone.
Near the conclusion of the interview, the court instructed
Juror 5 to not disclose anything to anyone else and reminded
Juror 5 that the court was merely “information gathering.” The
court directed Juror 5 to “[j]ust be a stone wall about this
conversation” and it “[didn’t] want to affect the deliberations.” At
the end of the interview, the court reiterated to Juror 5, “You are
going . . . just keep everything I said in mind . . . on the QT here
for us.”
7. Interview with Juror 6
The court read the note from Juror 4 to Juror 6. Juror 6
believed that Juror 10 was “speculat[ing] on things that [were]
not presented or in evidence.” Juror 6 first stated that Juror 10
challenged the document related to the cellphone evidence based
on his personal expertise. Juror 10 believed “his expertise was
11
above” the expertise of the witness who testified about the
document. According to Juror 6, Juror 10 also could not believe
that others were not called as witnesses to Shanan’s rape. Juror
10 specifically mentioned the three men who were present at the
time.
Juror 6 further agreed with the note’s statement that Juror
10 did not follow the jury instructions. Juror 10 believed the case
involved prostitution and questioned where Duran had the
money to retain defense counsel. Juror 10 presumed that defense
counsel was privately retained because he did not “look like a
public defender.”
Juror 6 stated that Juror 10 was not following CALCRIM
No. 207 when he said the incident recorded on the cellphone
video “didn’t happen” based on the different times on the
document. Juror 10 refused to consider the cellphone video
evidence, questioning how it was presented at trial and alleging
that someone tampered with it.
The court told Juror 6 that their conversation was to
remain under “a cone of silence.” The court further instructed
Juror 6 to not “let it affect [Juror 6’s] deliberations” and to “be a
stone wall.”
8. Interview with Juror 7
The court initially told Juror 7 that their conversation was
not to be shared with anyone else. The court also indicated it did
not want it to affect deliberations. The court explained, “I am
trying to avoid as much as I can . . . the specific things that are
discussed through this whole deliberation process. There is going
to be some of that, but I am just trying to be careful.”
The court read Juror 4’s note to Juror 7. First, Juror 7
agreed that Juror 10 was “speculat[ing] on things that [were] not
12
presented or in evidence.” Juror 7 also confirmed that Juror 10
questioned why “RP” or any witnesses to Shanan’s rape were not
called and why different dates were created for a file on the
cellphone evidence.
Juror 7 further agreed that Juror 10 did not “want to follow
jury instructions,” reasoning, “He’s speculating a lot. He is
formulating his own theory and not focused on evidence
presented.” Juror 7 referred to the definition of evidence in
CALCRIM No. 222 when commenting on Juror 10’s statement to
the jurors that he did not “believe in the evidence presented,”
including the “sworn testimony of the witnesses.” Instead, Juror
10 was “going outside of” the evidence.
According to Juror 7, Juror 10 refused to accept the
cellphone video as evidence, alleging that it could have been
“planted” or “placed to frame the defendant.” Juror 10
questioned how the video was placed in Duran’s cellphone
because with current technology allowed it to “easily [be] put” in
a phone.
Finally, Juror 7 stated that Juror 10 formulated a theory
that the case involved extortion and prostitution and Lamar was
Shanan’s and Linda’s pimp.
The court admonished Juror 7 to not share any of their
conversation with the other jurors and instructed Juror 7 to be a
“stone wall.” The court also stated, “It is a cone of silence . . . . It
is not to let this interfere with your deliberation process. Not let
it affect your process. It’s information gathering only, and it’s not
meant to prejudice anything or imply anything. It’s really just
me getting information from you. [¶] You are not going to share
this [with] any of the other jurors or let it affect your
deliberations.”
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9. Interview with Juror 8
The court read the note to Juror 8. Juror 8 initially agreed
that the statements in Juror 4’s note were accurate. Juror 8
stated, “I think he maybe wanted to just think possibly we could
look more into the evidence” and wanted “more things” to “look
into to make a decision of guilty or not guilty.” Juror 8 did not
“really think” that Juror 10 was speculating. Juror 8 believed
that Juror 10 was following CALCRIM Nos. 200, 222, and 300.
When read the note from Juror 4 again, Juror 8 agreed that
Juror 10 questioned why witnesses to Shanan’s rape were not
called to testify, questioned the different dates created on the file
for the cellphone evidence, and refused to accept the cellphone
video as evidence. Juror 8 also agreed that Juror 10 mentioned
that the case involved “extortion” and “Shanan could have been a
prostitute.” According to Juror 8, Juror 10 questioned, “[W]as
she really asking for it or was she really raped?” Juror 8 did not
think Juror 10 was considering matters that were not part of the
evidence. Juror 8 did not recall Juror 10 or any other juror
relying on their expertise in cellphones.
The court stopped Juror 8 from discussing the details of her
thoughts about the evidence.
The court advised Juror 8 to be “a stone wall when it comes
to the things [they] discussed” and ordered Juror 8 to not share
any of the information they discussed. The court did not want
Juror 8 to “feel prejudiced for or against anybody on the jury.”
The trial court observed that Juror 8 was elderly and “a
little slower . . . on the uptake of the instructions.”
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10. Interview with Juror 9
Juror 9 agreed that the statements in Juror 4’s note were
accurate. Juror 10 stated that someone could have tampered
with the evidence to frame Duran.
Juror 9 stated that from the beginning of deliberations,
Juror 10 stated “there is more . . . to the case [than] we are being
allowed to see or to hear.” He specifically stated that Lamar
could have been Shanan’s and Linda’s pimp. The court stopped
Juror 9 from revealing his thoughts about Lamar. Juror 10
believed that the case involved extortion and that Lamar
arranged for the incidents to happen. Juror 9 stated that Juror
10 believed “they changed their mind[s], that’s why everything
got here.”
On more than one occasion, Juror 10 stated that he refused
to accept the cellphone video as evidence. Juror 9 remembered
Juror 10 stating that someone had “tampered” with Duran’s
cellphone. Juror 9 confirmed that Juror 10 questioned People’s
23, which was a document related to the cellphone evidence.
Juror 10 stated that the time was different for the video file. He
repeatedly said “he knows how these things work” from his job
experience. Juror 10 stated that “when a file is accessed again
and may be changed or whatever, it will note a different time and
date on the file.”
When providing his interpretation of the video, Juror 10
“said it look[ed] like they were having fun. That it was
something that they had agreed to, but then she could have
changed her mind. And then she decided that she didn’t want to
continue with the game. Because we know that bipolars, so they
can change their mind, like flip. And then that’s when she
started yelling that. Yeah, he keeps saying that it was
15
consensual and that it’s just a game. It’s just a game going bad,
something like that, he said.”
Juror 9 told the court that Juror 10 did not follow
CALCRIM No. 200 by not deciding what happened based on the
evidence. As an example of a decision not based on the evidence,
Juror 9 referred to Juror 10’s belief that someone tampered with
the video. Juror 9 stated that Juror 10 was not following
CALCRIM No. 222. Juror 10 refused to accept the forensic
expert’s testimony because it did not address the two different
times listed on People’s 23.
Juror 9 further stated that Juror 10 was biased against the
victims “because of their mental instability.” Specifically, Juror
10 “talked about their inability to really probably understand
what was happening due to all the medications that they been
taking.” He repeatedly said that “they could have been under
drugs” and “they were having a party, and then changed their
mind[s] . . . due to their . . . being bipolar.”
Juror 9 told the court that Juror 10 was not following
CALCRIM No. 300 when he questioned why Lamar or Gabriel
were not called to testify.
At the conclusion of the interview, the court told Juror 9
that everything they discussed was confidential. Juror 9
confirmed that the interview would not affect Juror 9’s
“deliberation process.” The court instructed Juror 9 to be a “stone
wall” and not “telegraph or state . . . anything that came out of
[their] conversation.”
11. Interview with Juror 11
The court opened its interview with Juror 11 by stating, “So
I am going to be asking some questions, and from the questions I
don’t want you to form opinions about any of the other jurors or
16
the process itself. [¶] . . . [¶] By my questions I am not inferring
or meaning that someone did something wrong or right. I don’t
want you to make judgments about any of it just based upon
these questions.” At one point, the court further stated, “I am
trying not to invade into the . . . sanctity of the deliberations.”
The court read Juror 4’s note to Juror 11. Juror 11 agreed
that Juror 10 was speculating and questioned why “RP” and
other witnesses to Shanan’s rape did not testify. Juror 11
believed that Juror 10 was “trying to follow” the instructions but
he was “reading possibly other things into” them “that might not
be in” them. Juror 10 felt strongly about someone tampering
with the evidence. He also believed there was extortion and
Shanan could have been a prostitute. Juror 10 also speculated
that “if he held out with a nondecision, then it might go back and
be retried.” Juror 11 did not believe Juror 10 was biased against
anyone. Juror 10 asserted that he had special expertise in
computers, programing, and troubleshooting software that made
him challenge the accuracy of the time stamp on the video. Juror
10 felt “he might have insight” that the other jurors did not have.
The court admonished Juror 11 to not discuss their
interview with anyone and to be a “stone wall.” The court also
stated, “[W]hat I don’t want you to do I feel like I am casting
aspersions on anybody . . . on the jury. No. 10 or anyone else.
[¶] . . . [¶] It’s just really fact gathering. [¶] . . . [¶] I want the
jury to, if it begins to deliberat[e] again, to continue where they
were. For example, without having anything that I am doing
now change or interfere with that.” Juror 11 promised to not
have their conversation affect the deliberations.
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12. Interview with Juror 12
The court first explained to Juror 12 that it would be
asking questions and Juror 12 should not feel that anyone did
anything wrong.
When asked if Juror 10 was “speculat[ing] on things that
[were] not presented or in evidence,” Juror 12 stated that Juror
10 “doesn’t want to use the information that we all received
within this case and . . . do what a juror is supposed to do. And
use that evidence and information and make a decision based
on . . . that. . . . He comes up with a lot of theories that are [sic]
aren’t based on any truth or anything that was actually even
brought up in court. And he won’t abide by the evidence or what
was—actually brought up in court.” Juror 12 further stated,
“[W]hen we tried [to] rationalize with him and remind him
that . . . [w]e need to use information that we received in court
and make a decision based [on] that and not speculate.”
Juror 12 confirmed that Juror 10 questioned why “RP” or
any other witness to Shanan’s rape was not called to testify. On
multiple occasions, Juror 10 stated his belief that extortion was
involved, and Shanan A. could have been a prostitute.
Juror 12 confirmed that Juror 10 asserted special expertise
about the cellphone evidence “when he is obviously not qualified,
or it’s not his job to be that person.” Juror 10 “quickly
disregarded the video . . . because . . . he has a background in
video and technology and kind of AI. . . . He thinks that planting
a video is very common thing and how it’s an easy thing to do.”
Juror 12 stated that Juror 10 did not want to follow the
jury instructions. Juror 12 stated, “I would say that he
continuously doesn’t want to abide by the rules.”
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Juror 12 referred to CALCRIM No. 222 when stating that
Juror 10 did not have a high regard for “homeless” or “the police
department in general.” Juror 10 mentioned that he once wanted
to become a police officer but it fell through.
Juror 12 stated Juror 10 did not follow CALCRIM No. 300
because he stated that certain facts would have been revealed if
specific witnesses had been called to testify. Juror 12 believed
that Juror 10’s judgment was “only based off information that the
witnesses could have said.”
The court told Juror 12 that he did not want their
conversation to influence further deliberations. The court
reminded Juror 12 to be a “stone wall” and not discuss their
conversation with anyone.
13. Interview with Juror 10
The court began its interview with Juror 10 by stating that
it was “an information gathering process.” The court stated, “It is
not designed to accuse you or anyone else of doing anything
wrong.” At one point, the court stated, “If all of you go back and
continue deliberations, I wouldn’t want this process of me asking
all the jurors what was going on, including you, to interfere with
the process that the instructions tell you are collaborative.”
The court read the note to Juror 10. Juror 10 stated that
he discovered a discrepancy contained in People’s 23, the
document related to the cellphone video evidence. To interpret
the document, he used his personal expertise of “working with
computers, servers, networks, internet and all of that kind of
stuff.” Juror 10 believed “[d]ates and files and stuff can be
manipulated and changed and sources and the metadata and
stuff like that.” He believed that two different dates should not
have been listed for the same file on the document. Juror 10
19
concluded that someone intentionally modified the file, as he
believed was indicated by two different dates that were listed.
He described his experience with modifying files, his training in
system administration, and the expertise and software needed to
tamper with files. Juror 10 told the court that when questioning
People’s 23, he brought his experience and knowledge of
modifying files to the attention of the other jurors.
The court referred Juror 10 to CALCRIM No. 300 to remind
him that “[n]either side is required to call all witnesses who may
have information about the case.” Juror 10 said he would have
wanted to hear from Lamar, who did not testify. He told the
court that he saw Lamar sitting in the courtroom audience.
Juror 10 recognized the voice from the video when he heard this
man talking outside of the courtroom. He also believed he heard
Shanan A. call the person Lamar in the hallway. Juror 10 shared
this information with the other jurors. The court referred Juror
10 to CALCRIM No. 222 which stated that the jurors “must
disregard anything that [they] saw or heard when the court was
not in session.” Juror 10 denied going into the jury room, saying
that the jury should have heard from Lamar.
Juror 10 believed it was possible that Lamar was a pimp
and the two victims were prostitutes. He further believed
extortion was involved. Juror 10 believed Shanan A. was a
prostitute based on her four interactions with Duran and her
“going around Mr. Lamar’s area and stuff.” Juror 10 also
referred to Shanan A. seeing Duran talking with Lamar before
coming into her tent.
Juror 10 also discussed Shanan A.’s mental health
condition. He understood that when not taking their medication,
people with bipolar disorder “get very aggressive.” The
20
prosecutor introduced evidence that Shanan had an out of state
“criminal record for violence.” Juror 10 disbelieved that Shanan
would not have “pushed back” or ran away rather than continued
interacting with Duran.
Juror 10 denied being biased against police officers. He
stated that another juror “jumped to that conclusion.” Juror 10
revealed that he “was almost a police officer” and “went through
the training.”
During the interview, Juror 10 admitted, “I profile people
just like people profile me. I profile you, the two attorneys, your
client, the officer right here. And I profile everybody here.”
At the conclusion, the court reminded Juror 10 to not reveal
any of their conversation to any of the other jurors and instructed
him to be a “stone wall.” “I am here because I am supposed to
make sure that whoever is sitting in that chair gets a fair trial.”
D. Trial court’s order to remove Juror 10
After interviewing the jurors, the prosecutor moved to
disqualify Juror 10. The court found good cause to remove Juror
10 based on misconduct. The court selected an alternate juror to
replace Juror 10. The reconstituted jury began deliberations
anew.
II. Procedure
On June 17, 2024, the jury found Duran guilty of forcible
rape of Linda A. (Pen. Code, § 261, subd. (a)(2);3 count 1) and
forcible sodomy of Linda A. (§ 286, subd. (c)(2)(A); count 2). As to
both counts, the jury found true the allegations that the offenses
3 All further undesignated statutory references are to the
Penal Code.
21
were committed during a burglary of an inhabited dwelling (§
667.61, subds. (a), (d)(4)) and that the offenses were committed
against more than one victim (§ 667.61, subds. (b), (e)(4)).
The jury also found Duran guilty of forcible rape of
Shanan A. (§ 261, subd. (a)(2); count 3). As to this count, the jury
found true the allegations that the offense was committed during
a burglary of an inhabited dwelling (§ 667.61, subds. (a), (d)(4))
and that the offense was committed against more than one victim
(§ 667.61, subds. (b), (e)(4)).
The trial court sentenced Duran to a total term of 50 years
to life. The court imposed consecutive sentences of 25 years to
life on counts 1 and 3. The court imposed a concurrent sentence
of 25 years to life on count 2.
DISCUSSION
Duran argues that the trial court improperly removed
Juror 10. He also argues that the court’s inquiry of the jurors
about Juror 10’s misconduct improperly invaded the sanctity of
deliberations. We reject both arguments.
I. Section 1089 and the demonstrable reality test
Section 1089 authorizes a trial court to discharge a juror for
good cause, which exists when the juror is unable “to render a
fair and impartial verdict based on the evidence presented at
trial.” (People v. Barton (2020) 56 Cal.App.5th 496, 508.) A court
has “broad discretion to remove a juror for cause” under section
1089. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052
(Barnwell).) But the court must exercise “[g]reat caution . . . in
deciding to excuse a sitting juror.” (People v. Allen and Johnson
(2011) 53 Cal.4th 60, 71 (Allen and Johnson).)
22
The juror’s inability to perform his or her duties must
appear in the record as a “demonstrable reality.” (Barnwell,
supra, 41 Cal.4th at p. 1052; People v. McGhee (2025) 17 Cal.5th
612, 628 (McGhee).) Because discharging a deliberating juror
implicates a defendant’s federal and state constitutional rights to
a jury trial and to due process, the demonstrable reality test
“entails a more comprehensive and less deferential review” than
the substantial evidence standard. (Barnwell, at p. 1052.) The
record must show the trial court “did rely on evidence that, in
light of the entire record, supports its conclusion” that the juror
was unable to perform his or her duty. (Id. at pp. 1052–1053;
McGhee, at p. 628.) We do not reweigh the evidence. (Barnwell,
at p. 1053; McGhee, at p. 628.) We “must be confident that the
trial court’s conclusion is manifestly supported by evidence on
which [it] actually relied.” (Barnwell, at p. 1053; McGhee, at p.
628.)
II. The trial court’s inquiry was a proper exercise of
its discretion
Duran argues the trial court’s inquiry into Juror 10’s
misconduct unnecessarily intruded upon the sanctity of jury
deliberations. He asserts that the court abused its discretion by
asking each juror about the allegations against Juror 10
contained in the note written by Juror 4, directing the jurors to
instructions that Juror 10 might not be following, and “ferreting
out” the jurors’ mental processes. We disagree.
If a trial court learns that a juror is unable or unwilling to
deliberate, it may conduct “ ‘whatever inquiry is reasonably
necessary to determine’ ” whether grounds exist to discharge him
or her. (People v. Cleveland (2001) 25 Cal.4th 466, 484
(Cleveland).) “ ‘ “The specific procedures to follow in
23
investigating an allegation of juror misconduct are generally a
matter for the trial court’s discretion.” ’ [Citation.] But when the
inquiry into possible grounds for discharging a juror occurs
during deliberations, . . . it ‘should be as limited in scope as
possible, to avoid intruding unnecessarily upon the sanctity of the
jury’s deliberations.’ [Citation.]” (McGhee, supra, 17 Cal.5th at
p. 629.) The Supreme Court has directed trial courts to focus its
inquiry on “the conduct of the jurors, rather than upon the
content of the deliberations.” (Cleveland, at p. 485.) The court
should end its inquiry once it determines the juror “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.” (Ibid.)
“The manner in which the trial court conducted its inquiry
is subject to review for abuse of discretion.” (People v. Fuiava
(2012) 53 Cal.4th 622, 712 (Fuiava).)
When first informed of the possible misconduct by Juror 10,
the trial court initially reinstructed the jurors with CALCRIM
Nos. 200, 201, 220, 222, and 3550. The court interviewed the
other jurors only after the reinstruction appeared unhelpful as
indicated by a subsequent note from Juror 4, the foreperson, and
personally speaking with him. The court stated, “I would not
make a judgment on the foreperson’s statement alone.” With
information that Juror 10 might be engaging in misconduct, the
court was required to conduct whatever inquiry was reasonably
necessary to determine whether misconduct had occurred.
(Cleveland, supra, 25 Cal.4th at p. 480.)
Duran complains that the trial court should have started
the inquiry with Juror 10. The Supreme Court in McGhee
24
suggested that the trial court could have first spoken to the juror
who was alleged to have committed misconduct. (McGhee, supra,
17 Cal.5th at p. 629.) The Supreme Court stated that this juror
“may have been in the best position to respond to the accusations
against him.” (Ibid.) But the Court did not require that the trial
court begin with the suspect juror. The Court merely reiterated
the need to avoid intruding on the sanctity of deliberations.
Here, the trial court took great care in avoiding any such
intrusion. With each juror, the trial court articulated the
boundaries of its inquiry. It stated that the purpose of the
interview was to gather information. The court directed each
juror not to reveal anything about the facts being discussed in the
jury room and advised its intention to avoid invading in the
deliberations. If a juror attempted to comment on specific details
discussed during deliberations, the court would stop the juror.
The court began and concluded each interview with the direction
that the juror was to be a “stone wall” and not reveal or
“telegraph” anything discussed to anyone including the other
jurors.
Duran also fails to state why starting with Juror 10 was
problematic in this case. Again, the trial court was careful. It
opted to not begin with Juror 10 to avoid “ganging up on” him in
the courtroom. The court stated, “If he were to remain on the
jury, I don’t want to create a situation where I have made
matters worse by going through the process. [¶] But trying to
gather inform[ation], I have been trying to tell the jurors that
they should remain as they were in the jury deliberation,
unaffected by the conversations that I am having.”
The court proposed “literally start[ing] with Juror No. 1
and just ask[ing] some of the same questions.” The court stated,
25
“[I]t would be most helpful to make sure that we have the
information that we need.” The court deliberately avoided
drawing conclusions until it completed its information gathering.
The court began the inquiry with Juror 10 by stating, “Listen, I
want you to hear this loud and clear. This is an information
gathering process. It is not designed to accuse you or anyone else
of doing anything wrong. So I just want you to look at it from
that point of view. That’s not a hot seat you are sitting in. I did
go through all the jurors.” After one day of inquiry which
involved seven jurors, the court determined that it needed to hear
from the remaining five jurors, including Juror 10. When a court
determines that an inquiry is necessary, it “must take care not to
conduct an investigation that is too cursory.” (Fuiava, supra, 53
Cal.4th at p. 710.) At the end of the process, the court confirmed
that it was necessary to interview all 12 jurors. It allowed the
court to candidly tell Juror 10 that he was not being singled out.
Additionally, from the court’s perspective, no single juror,
including Juror 10, would have provided a complete picture of
whether he engaged in misconduct. But only after interviewing
all jurors, the court observed that “a very clear pattern . . . was
established through Jurors 1 through 12, separating out Juror
No. 10[,] . . . that they all believed . . . he was speculating about
things that were not presented in the evidence.”
Duran further argues that when the trial court interviewed
Juror 10, the questions “went far beyond asking the juror about
the allegations against him, probing the logic of his conclusions,
and the bases for his theories.” Duran specifically refers to the
court’s inquiry of Juror 10’s belief that someone tampered with
the cellphone video evidence and his interpretation of the
26
cellphone extraction data in People’s 23. We reject Duran’s
argument.
The trial court asked Juror 10 about his interpretation of
the data because it needed to understand the allegation that
Juror 10 drew from his job experience to interpret that evidence.
The court was trying to determine whether Juror 10 was
interpreting the evidence based on his life experience rather than
“specialized information obtained [from] outside sources.” The
court admitted to spending “a little extra time” with, and asking
additional questions of, Juror 10 to determine whether his
speculation was “based on something outside of the evidence
versus [an] analysis of the evidence itself.” The trial court’s
questions were reasonably necessary for this determination.
Duran additionally contends that the court’s inquiry was
impermissibly suggestive. He criticizes the court for asking each
juror about the details of Juror 10 alleged in the note, rather
than generally asking if any juror was failing to follow
instructions or was speculating about the evidence. But the court
explained, “the entire inquiry starts with the note . . . there is a
lot of detail in that note . . . so that’s why each of the jurors was
asked about the content of the note itself in its detail.” The court
added, “I am trying to remain neutral with the jurors as best I
can to get the information that I think I need.” The court’s
questions were restrained and limited to the allegations of
misconduct.
Duran also complains that the trial court impermissibly
suggested affirmative responses to questions about whether
Juror 10 was not following certain jury instructions. We reject
Duran’s complaint. The court made a set of instructions
available during the interviews and permitted each juror to point
27
out instructions which they believed Juror 10 was not following.
The court did not suggest any instruction for the jurors to flag.
Duran concedes that Jurors 1, 2, 4, 5, 6, and 12 spontaneously
identified various instructions which Juror 10 did not follow. The
unprompted responses of these six jurors suggest they were not
influenced by the court.
The absence of improper influence by the court is further
supported by the jurors not all flagging the same instructions.
For example, seven of the jurors believed Juror 10 was not
following CALCRIM No. 222, and three jurors believed he was
not following CALCRIM No. 300. Some of the jurors even
believed Juror 10 did not violate certain instructions. For
example, Juror 4 believed Juror 10 did not violate CALCRIM No.
300, and Juror 8 believed that Juror 10 followed CALCRIM Nos.
222 and 300.
More significantly, the jurors flagged specific instructions
only after describing the misconduct in which Juror 10 engaged.
The jury instruction to which each juror referred merely
identified the law violated by that misconduct.
We conclude that the trial court did not abuse its discretion
by interviewing each juror about the allegations against Juror 10
as listed in Juror 4’s note. We further conclude that during the
inquiry, the court took sufficient precautions to avoid invading
the sanctity of deliberations and improperly suggesting to the
jurors that Juror 10 was engaged in misconduct.
III. Demonstrable reality
The trial court identified Juror 10’s refusal to follow the
court’s instructions as the misconduct in which he engaged. “A
juror who refuses to follow the court’s instructions is ‘unable to
perform his duty’ within the meaning of [section] 1089.” (People
28
v. Williams (2001) 25 Cal.4th 441, 448, disapproved on another
ground by Barnwell, supra, 41 Cal.4th at p. 1052.) To support its
finding of misconduct, the trial court primarily relied on two acts
by Juror 10. First, Juror 10 speculated about Lamar being
present in the courtroom. Second, Juror 10 used his job expertise
to conclude the cellphone video evidence was fabricated.
A. Belief that Lamar was present in the courtroom
According to the trial court, all the jurors believed Juror 10
“was speculating about things that were not presented in the
evidence.” Juror 10 initially admitted to the trial court his beliefs
that Lamar was a pimp and Shanan A. and Linda A. were his
prostitutes. Juror 10 also admitted that he determined Lamar
was the man who accompanied Shanan A. to the courtroom. He
further admitted that he based this determination on his
comparison of the voice of Shanan A.’s companion to Lamar’s
voice on a recording introduced during trial. 4
The trial court found that Juror 10’s belief “upon matters
that were outside the scope of the evidence” was “so wildly
inappropriate . . . for a juror.” The court explained that Juror 10
took information “from outside the courtroom and [brought] it
into deliberations and form[ed] opinions based upon that
information.” The court concluded that Juror 10 “was literally
looking at evidence that is not introduced into the case for
purposes of making decisions about the case. [¶] . . . [¶] That’s a
glaring example of something that I believe is misconduct for him
to do . . . .”
4 The court found that the man was not Lamar. The
prosecutor stated the man was Shanan A.’s boyfriend Douglas.
29
Duran asserts “there was no evidence [Juror 10] told any of
the other jurors that his conclusion that Lamar had been in the
courtroom was based on what he heard in the hallway.” But
Juror 10 at least admitted to the possibility of sharing this
information with the other jurors, as indicated by his exchange
with the trial court:
The court: Now, you mentioned . . . that you
understand that Lamar was in
the courtroom?
Juror No. 10: Yes, I believe. I can’t swear for
sure, but I believe that’s who he
was. But when I heard the
person talking, which now you
are telling, I guess, I shouldn’t.
But this is what I heard outside.
I heard the voice. But it’s the
voice that sounds the same as
what I heard on the recording.
The court: You shared—did you share that
information with the other
jurors?
Juror No. 10: Ah, I might have at the last time
before everything was getting
kind of heated. . . .
Juror 5 confirmed that Juror 10 questioned why Lamar was not
called as a witness when he was present in the courtroom. Even
if Juror 10 did not divulge his voice comparison to the other
jurors, his consideration of Lamar not being called to testify
despite his presence in the courtroom remained a matter outside
the evidence that he considered and raised for other jurors to
30
consider. This misconduct violated CALCRIM No. 222, which
defined “evidence” and instructed, “You must disregard anything
you saw or heard when the court was not in session.”
B. Reliance on personal expertise
The trial court also found that Juror 10 improperly drew
from “his field of experience to interpret People’s 23.”
In Allen and Johnson, the Supreme Court addressed a
juror’s introduction of a personal theory not based on the record.
An eyewitness to the underlying crime was impeached by
evidence of his employment timecard that showed he was at
work, not at the location of the crime. (Allen and Johnson, supra,
53 Cal.4th at p. 64.) The eyewitness explained that he and his
coworker “Jose” often clocked in for each other to show they were
at work, even though they were not. (Ibid.) During deliberations
when discussing the eyewitness’s explanation of the timecard
evidence, the suspect juror said, “ ‘That’s a lie. I know Hispanics,
they never cheat on timecards, so this witness . . . was at work,
end of discussion.’ ” (Id. at p. 66.) The Court determined that the
remark did not constitute misconduct because it “did not involve
specialized information from an outside source,” but was “an
application of life experience.” (Id. at p. 78.)
The Supreme Court distinguished between “the
introduction of new facts and a juror’s reliance on his or her life
experience when evaluating evidence.” (Allen and Johnson,
supra, 53 Cal.4th at p. 76.) For the former, the Court quoted
from In re Malone (1996) 12 Cal.4th 935, to which the trial court
here also referred. In In re Malone, the suspect juror was a
psychologist who disputed the accuracy rate of polygraph tests
claimed by polygraph examiners. The Supreme Court
disapproved of “discuss[ing] an opinion explicitly based on
31
specialized information obtained from outside sources.” (Id., at p.
963; Allen and Johnson, at p. 76.) The Court labeled as
misconduct “[s]uch injection of external information in the form
of a juror’s own claim to expertise or specialized knowledge of a
matter at issue.” (In re Malone, at p. 963.)
Juror 10’s opinion about the cellphone video evidence from
evaluating the data in People’s 23 was not based on mere life
experience. He understood the different time stamps on the
document to indicate the video file was modified. He learned
about the significance of time stamps from his job experience
working with computers. The different time stamps led Juror 10
to believe that someone tampered with the cellphone video
evidence. This purported significance of the time stamps was a
new fact based on Juror 10’s specialized knowledge that he
obtained from sources outside of the trial. Regardless of whether
Juror 10’s understanding of the time stamps was correct, his
interpretation of them and his sharing that information with the
other jurors constituted misconduct.
The record—which includes Juror 10’s reliance on his job
expertise in interpreting the cellphone evidence, as well as his
determination that Lamar was present in the courtroom during
trial—established a demonstrable reality that Juror 10 was
unable to follow the law and could not perform the duties of a
juror. (Barnwell, supra, 41 Cal.4th at p. 1053.) We conclude the
trial court was justified in discharging Juror 10.
32
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
EGERTON, Acting P. J.
ADAMS, J.
33