Friday, June 12, 2026
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Judge Erred in Kicking ‘Likely Holdout’ Against Guilty Verdict for Not Deliberating—C.A.
Opinion Says Juror Dismissal Requires Reversal of Murder Conviction Where Conduct, as Opposed to Other Panelists’ Characterizations, Showed No Failure to Perform
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has reversed an alleged killer’s judgment of conviction relating to a decision by the trial court to kick a juror, who was the “likely” sole holdout against a finding of guilt on a second-degree murder charge, saying the dismissal was not supported when “looking at the conduct” at issue rather than the other panelists’ characterizations of her behavior.
Acting Presiding Justice Terry B. O’Rourke authored Wednesday’s unpublished decision, joined in by Justices Truc T. Do and Julia C. Kelety, saying:
“Juror No. 1 never indicated that she was unable or unwilling to continue deliberating, or expressed a bias, moral conviction, or external distraction that would preclude her from deliberating….She never conveyed a wish to be excused. None of the other jurors alerted the court that Juror No. 1 refused to deliberate or asked her to be excused. The circumstances here are thus unusual among cases involving removal of a juror, which typically arise out of a complaint—sometimes strenuous complaints—from one or more jurors.”
Acknowledging that, upon questioning, some of the other panelists described her as getting “bogged down” in the jury instructions and as “not really communicating with us,” and another juror “offered the ultimate opinion” that she had refused to deliberate, O’Rourke cautioned:
“But ‘a trial court should be wary of relying on the opinions of jurors, rather than on its own consideration of objective facts.’…Instead of reaching a conclusion premised on the other jurors’ opinions, the court ‘should focus on its own consideration of a juror’s conduct.’ ”
Potential Problem
The trial court was alerted to a potential problem in the jury room after a panelist, identified as “Juror No. 1,” complained to the bailiff that she was being picked on and had been called an expletive-laced, derogatory name by another member of the jury after the close of evidence in a case accusing Earl Bowman of the June 2021 fatal shooting of Anthony Lozano during a botched drug deal.
When the trial judge questioned Juror No. 1, she said that she was “doing [her] best to come to a decision” but that some other members of the jury had grown frustrated with her.” The foreperson reported that the jury was hung “11 to 1” at the point of the conflict, and that another panelist had apologized after saying something rude to Juror No. 1.
Multiple jurors were questioned and described the juror as spending too much time diving into the jury instructions and saying that she does not agree with the rest of the panel. On May 30, 2023, San Bernardino Superior Court Judge Melissa A. Rodriguez declared that “we are going to replace [Juror No. 1] with an alternate” and remarked:
“The court has heard from three separate jurors, including the foreperson, that indicate[] the juror in Seat No. 1 is not willing to deliberate with her fellow jurors…[T]he theme is that juror in Seat No. 1 will not engage in communication and will not deliberate with her fellow jurors and discuss her points of view.· It appears that she may have a different point of view, but will not explain to her…fellow jurors why she has that point of view….It appears to the court that she is not willing to deliberate and communicate.”
Rodriguez also highlighted that “several different jurors of very different personalities [said] that she’s bogged down by the paperwork.” An alternate was called, and the newly-constructed panel returned a guilty verdict on the second-degree murder charge a few hours later.
Unable to Perform
O’Rourke pointed to Penal Code §1089, which provides:
“If at any time, whether before or after the final submission of the case to the jury, 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,…the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box….”
Saying that the section is most often applied to remove a juror who falls ill or suffers an emotional hardship, he noted that it has also been applied to dismiss an individual who refuses to deliberate on the theory that such a panelist is “unable to perform” her duty but that serious caution is warranted in such circumstances due to the impact on a defendant’s right to a decision by a unanimous jury.
Noting that a “juror’s inability to perform…her duty must appear in the record as a ‘demonstrable reality,’ ” he commented:
“The trial court identified two reasons for its removal of Juror No. 1: (1) she was unwilling to deliberate and communicate with fellow jurors, and (2) she was ‘bogged down by the paperwork.’ Applying the heightened…standard of review, we conclude that the court abused its discretion in discharging Juror No. 1 because we are not confident the record ‘manifestly supports’ as a ‘demonstrable reality’ the court’s conclusion that Juror No. 1 was unable to perform her duty as a juror.”
Three Separate Jurors
Reasoning that “[t]he court’s finding that ‘three separate jurors, including the foreperson,’ indicated that Juror No. 1 ‘is not willing to deliberate,’ is not supported by the evidence the court actually relied upon,” he wrote:
“Looking at the conduct, not at the jurors’ characterizations or opinions, the questioned jurors all described communications with Juror No. 1….Juror No. 6 said…she communicated, though ‘only when she feels like it,’….Juror 4 said Juror No 1…had explained she was not comfortable with the different definitions of…murder….Juror No. 11 relayed Juror No. 1 saying she ‘needed more time to go over the paperwork.’ For these jurors to have been able to articulate Juror No. 1’s concern about the definition of murder and her need for more time, Juror No 1 must have been engaging in the deliberative process….”
As to the concern that she was “bogged down” with paperwork, he opined:
“How many times a juror should examine the instructions or records, how a juror should interpret things, and whether something should…be an issue, are within a juror’s purview to determine, bounded by the evidence and the court’s instructions, as Juror No. 1 expressly said she was trying to do in coming to a decision. A juror’s disagreement with the majority on ‘the manner in which deliberations should be conducted…does not constitute a refusal to deliberate and is not a ground for discharge.’ ”
The jurist added:
“The trial court’s error in discharging Juror No. 1 warrants reversal….She was likely the lone holdout, and had the court accepted the foreperson’s report of a hung jury, the trial may have ended in a mistrial. Instead, Bowman was convicted after less than an hour of deliberations following the court’s empanelment of an alternate juror.”
The case is People v. Bowman, D087167.
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