THE PEOPLE,

                                Plaintiff and Respondent,                                 E017694 
                                                                                                       (Super.Ct.No. CR-59039)
v. 

JOHN DOE,                                                                                  OPINION

                                Defendant and Appellant.
_______________________________________/

APPEAL from the Superior Court of Riverside County. Vilia G. Sherman, Judge. (Judge of the Municipal Court, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

Michael B. Dashjian, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, Supervising Deputy Attorney General and Pamela K. Klahn, Deputy Attorney General, for Plaintiff and Respondent.

    A jury found defendant guilty of attempted murder and attempted robbery. Based on those convictions and the jury's true findings on great bodily injury and gun use special allegations, the trial court sentenced defendant to serve a total of 17 years in state prison. Defendant raises various claims of error in this appeal. We agree with his assertion that the trial court committed reversible error by removing a juror during the fourth day of deliberations and after the jury twice announced it was deadlocked. Because we are reversing the judgment on that basis and remanding the case for a new trial, the only other claim of error we win address in this appeal is defendant's challenge to the reasonable doubt jury instruction.

    The facts of defendant's crimes are not pertinent to our resolution of the dispositive issue in this appeal. We, therefore, will not recite them here and, instead, note they are accurately recounted in apperant's opening brief.

    On the fourth day of jury deliberations, and after the jurors twice notified the court they were deadlocked, the trial court removed a juror for misconduct after the jury complained that Mr. M., the juror in question, was interjecting his personal law enforcement expertise into the deliberation process. Defendant contends the trial court abused its discretion in removing the juror, and we agree. We further conclude, as we will explain, below, that the trial court's abuse of discretion was prejudicial in this case because the record indicates Mr. M.. was the lone dissenting vote.

    The pertinent facts are that before the jury complained about Mr. M.'s purported misconduct during deliberations, they twice notified the trial judge that they were deadlocked, 11 to 1. After receiving the second note and calling the jury into the courtroom, but before the trial court could ask the foreperson if "further deliberation would be of any avail" the trial court received yet another note from the jury. This third note, submitted by the foreperson, was signed by six other jurors and stated, "We the following jurors feel one juror on the panel refers to his background experience in law enforcement when deliberating. Also has said he doesn't have the time to sit and discuss information any further."

    The trial court initially discussed this third note with the jury foreperson, outside the presence of the other jurors. In doing so, the trial judge stated she had received another note "from [the foreperson] and from some of the other jurors to the effect that one juror on the panel refers to his background experiences in law enforcement when deliberating." When the trial court asked the foreperson to "enlighten me a little bit," the foreperson stated, "On a number of occasions it comes up in the -- I guess the discussion around the way the case was investigated and proper ways it should be or shouldn't be based on his background and experiences, personal experiences, on angles of reflection [sic] of bullets, which I talked to the jury and told them none of this [sic] are expert witnesses. So we shouldn't listen to that. If a person has background, they can use it for their own, but shouldn't talk to us about it. [¶] This person indicates that they are trying to keep their background out of their thought process, but it keeps coming up to the point to where a number of people are concerned about it, not only that it would be influencing their judgment of the situation but maybe perhaps influencing other folks. And we truly aren't expert witnesses in that, shouldn't be listening to other's experience on that matter."

    The trial court then asked the foreperson about the second sentence of the note which "indicates that this person says he doesn't have the time to sit and discuss information any further." Specifically, the trial court asked the foreperson, "Has he deliberated appropriately so far and participated, in other words, in the deliberations?" The foreperson answered, "With the exception of consistently looking at his watch, trying to do other business. When we'll ask if something will help -- It's a perception of open mindedness that doesn't seem to be there, seems to -- [¶] When we decided to send a note the first time, 'Okay. Let's get it over with and get out of here.' [¶] It's certainly not our intent to get it over with and get out of here." The foreperson continued, "The discussion is to the contrary, indicating that he wants to do the right thing, take the time to do it but body language and other things are completely contrary to what he says. That's distracting, if nothing else, to the other jurors. The ability to agree or disagree is irrespective. I want to make sure he has an open mind and works with us."

    After excusing the foreperson and discussing the above-quoted statements with counsel, the trial court decided, over defendant's objection, that the "next step" should be to talk with the juror in question. To that end, the trial court recalled the foreperson who identified the juror in question as Mr. M. The trial court then questioned Mr. M.

    When the trial court asked whether he had used some of his expert knowledge during deliberations, Mr. M. answered, "That is - Well, I don't know that that is correct. What happened is, another juror said something that was incorrect. And I said, First of all, you're not correct and we don't need to bring in our outside experiences, as we were instructed by the Court. And I corrected on what he had said." Mr. M. also stated, "I'm not going to use my experience because I took an oath not to. And I said, I would appreciate if we all reciprocated and did in kind." After suggesting that all the other jurors were bringing in expert knowledge and then clarifying that everyone was bringing in life experience (which he acknowledged is different from expert knowledge), Mr. M. stated he had not discussed expert knowledge. After talking with Mr. M., the trial court concluded there was "no option but to bring in the other jurors" who signed the note.

    The trial court then spoke individually with two of the six other jurors in question. The first, Miss C., told the court in pertinent part, that, "A lot of times we'll ask -- we'll be discussing something and then it's his turn to discuss, and he'll say, 'By my background that's not how it is,' or, 'that's not how it's done,' or he insinuates constantly by law enforcement background that's not how the system is, that's not how things are done, which confuses us. We really know what he's meaning, but he keeps saying by law enforcement background." Miss C. also indicated that Mr. M. made a couple of comments about how investigations are done and also she confirmed that, to her knowledge, no other juror had referred to expert training or experience during deliberations.

    In questioning the next juror, Mr. D., the trial court initially asked about the note and stated, "I'm particularly interested in the portion that states that the signatories to this note feel that one juror on the panel refers to background experiences in law enforcement when deliberating. . . . [¶] Perhaps this is happening. Perhaps it is not. [¶] In . . . Can you shed further light on this for me?" Mr. D. answered, "Yes. A lot of times he'll refer back to his background in the lineup. . . . He said, 'This is not exactly the way I would do it,' or 'not the way I have seen it in the past.' [¶] It's not necessarily everything, but things come out, you know, 'to my background.' 'This is the way it would be,' or 'with my experiences,' or . . . . [¶] In other words, he's telling us we don't necessarily know everything but he does." When the trial court asked if Mr. M., in using his background to discuss the lineup, had indicated how it should have been done, Juror Mr. D. answered, "Yes. . . . [¶] Specifically stating the fact that the other two boys [purportedly involved in the crimes] should have been in the lineup; that he didn't feel it was fair they weren't put in the lineup." Mr. D. also told the trial court that Mr. M. is continuously looking at his watch, saying, "'I can't be doing this next week. I can't do this tomorrow. We need to get this thing done,' continually trying to get us to a verdict."

    After talking to Mr. D., the trial judge concluded she did not need to speak with the other four jurors who signed the note because, "I have three jurors all indicating that one person has used specific expert background and training and that no other juror has, and the one juror in question has indicated that everybody else did but not him. And it appears to me that there has been at least severe misrepresentation under oath [by Mr. M.]" The trial court denied defense counsel's request to admonish Mr. M., i.e., "tell him not to bring up any of his background and experience in any future deliberations." The trial court also denied defendant's request for a mistrial.

    The four purported reasons the trial court articulated do not support her decision to remove Mr. M. from the jury under the circumstances presented in this case. A trial court has discretion under Penal Code section 1089 to remove a juror for serious and misconduct. (People v. Daniels (1991) 52 Cal.3d 815, 866.) "Whether or not that is what the court should do in a particular case depends on whether the misconduct of the discharged juror has destroyed the integrity of the remaining jurors 'in terms of the objective facts or events surrounding the misconduct itself.' [Citation.] That this is a process of the utmost sensitivity, with obvious constitutional overtones, is clear. [Citation.]" (People v. Guzman (1977) 66 Cal.App.3d 549, 559.)

    Although there is evidence in this record to support the trial court's finding that Mr. M. was, to use the trial court's term, "importing" his personal experience in law enforcement into the jury's deliberations, that conduct, at least as described in this record, did not rise to the level of serious and misconduct warranting his removal from the jury. Had the jury raised this concern before twice announcing they were deadlocked, we might reach a different result in this case. However, on this record, once the jury twice reached impasse, and the trial court was on the verge of declaring a mistrial removing the lone dissenting juror impugned defendant's right to a fair and impartial jury, one not inclined toward one side or the other. Under these circumstances, removal of M. for anything other than the most serious and willful misconduct raises the specter of a "stacked" jury and, thus, a violation of defendant's right to a fair trial.

    The trial court had an alternative to removing Mr. M. from the jury, the one defendant suggested -- admonishing Mr. M. to stop referring to his background and experience in law enforcement and further admonishing the other jury members to disregard Mr. M.'s comments. An admonishment appears particularly appropriate in this case because, at least according to the three jurors questioned, Mr. M.'s conduct had not influenced the jury's deliberations. Instead, his action in referring to his purported law enforcement experience, at worst, was annoying to the complaining jurors. It also appears Mr. M. may have relied on his background to explain why he was not agreeing with the other jurors. It also occurs to us that unless first admonished to refrain from the improper conduct, the record ordinarily will not be adequate to show the offending juror's misconduct was willful.

    For each of these reasons we must conclude the trial court abused her discretion in removing Mr. M. from the jury. Because, as previously discussed, it is apparent Mr. M. was the lone dissenting juror and, thus, leaning toward one side or the other, the trial court's error here was "tantamount to loading the jury with those who might favor" one side over the other. (People v. Hamilton, supra.) By removing Mr. M., the trial court effectively removed the source of the jury's 11 to 1 impasse and thereby prejudiced defendant by eliminating his right to a hung jury. Under these circumstances we have no alternative but to conclude the trial court's error in improperly dismissing Mr. M. was prejudicial to defendant. Because we are reversing the judgment on this basis we will not address defendant's claims regarding the manner in which the trial court selected the alternate juror to replace defendant. The only remaining issue defendant raises in this appeal which is pertinent to his new trial is defendant's assertion that the trial court incorrectly instructed the jury on reasonable doubt. Therefore we will address that issue.

    Defendant contends the trial court erred by instructing the jury on reasonable doubt according to the modified version of CALJIC No. 2.90 that our state Supreme Court suggested in People v. Freeman (1994) 8 Cal.4th 450. That modified instruction eliminates the "moral certainty" language that the United States Supreme Court found potentially troublesome in Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 1245. As the court suggested in Freeman, and as the trial court instructed the jury in this case, reasonable doubt "is not a mere possible doubt; because everything relating to human affairs is open to some possible or ginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." (People v. Freeman, supra, 8 Cal.4th at p. 504, fn. 9.)

    Defendant claims the instruction as modified and given in this case does not convey the degree of certainty required to find guilt beyond a reasonable doubt. We disagree with defendant's assertion but, more importantly, so does the California Supreme Court. As previously noted, the modification defendant challenges here is precisely the modification our state high court suggested in People v. Freeman, supra. While that suggestion arguably is dictum, it is Supreme Court dictum, and as such is highly persuasive. Consequently, we must decline defendant's invitation to ignore the California Supreme Court. Instead, we conclude the trial court correctly instructed the jury on reasonable doubt in this case by giving the modified version of CALJIC No. 2.90 approved by our Supreme Court and adopted by the state Legislature.

The judgment is reversed and the matter remanded to the trial court for a new trial.

McKINSTER J.

We concur:

HOLLENHORST
Acting P. J.

McDANIIEL
J.*

*Retired Associate Justice of the Court of Appeal Fourth District, sitting under assignment by the Chief Justice pursuant to article VI section 6 of the Califomia Constitution.