Appellant, William Satele, Reply Brief - California Courts - State of ...

XVI.
THE TRIAL COURT VIOLATED APPELLANT'S RIGHT
TO JURY TRIAL AND TO DUE PROCESS OF LAW
WHEN IT DISCHARGED JUROR NO. 10 IN THE
ABSENCE OF EVIDENCE SHOWING MISCONDUCT
TO A DEMONSTRABLE REALITY
A. This court Has Recently Made Clear That In Juror Removal Cases The
Record Must Show A Juror's Inability To Perform As A Juror To A
Demonstrable Reality
In the opening brief, appellant contended the trial court violated appellant's
right to jury trial and to due process of law when it discharged Juror No. 10, a
deliberating juror, pursuant to Penal Code section 1089. (AOB at pp. 262-279.)
At the time appellant filed his opening brief, a trial court's decision to remove a
deliberating juror was reviewed on appeal for abuse of discretion. (AOB at p.
269.)
Since then, as the Attorney General correctly indicates (RB 234-237), this
court has stated that the "more stringent demonstrable reality standard" is the
appropriate standard ofreview in juror removal cases. In People v. Wilson (2008)
44 Cal. 4th 758 this court stated:
Although we have previously indicated that a trial court's decision to
remove a juror pursuant to section 1089 is reviewed on appeal for
abuse ofdiscretion [citation] we have since clarified that 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" (id.
at p. 488 (conc. opn. of Werdegar, J.)). As we recently explained in
People v. Barnwell (2007) 41 Ca1.4th 1038, 1052: "To dispel any
lingering uncertainty, we explicitly hold that the more stringent
demonstrable reality standard is to be applied in review of juror
removal cases. That heightened standard more fully reflects an
appellate court's obligation to protect a defendant's fundamental
rights to due process and to a fair trial by an unbiased jury."
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