California Court of Appeals, Second District, Sixth Division
Superior Court of Ventura County, No.
56-2012-00423044-CU-PO-VTA, Kevin G. DeNoce, Judge.
[Copyrighted Material Omitted]
E. Scherer, Chief Counsel, Jerald M. Montoya, Deputy Chief
Counsel, and Mark Berkebile for Defendant and Appellant.
Homampour Law Firm, Arash Homampour; The Ehrlich Law Firm and
Jeffrey I. Ehrlich for Plaintiffs and Respondents.
by Perren, J., with Gilbert, P. J., and Tangeman, J.,
Cal.Rptr.3d 361] PERREN, J.
Lynn Shanks died in a head-on collision with another
motorcycle on a state highway. In the ensuing wrongful death
action, a jury determined that the People of the State of
California (State) and the operator of the other motorcycle
[215 Cal.Rptr.3d 362] were at fault. The jury found the State
liable for a dangerous condition on the highway and awarded
Shanks's family a total of $12.69 million in damages.
After just 90 minutes of deliberation, however, Juror No. 2
reported that Juror No. 7 was not deliberating. The trial
court confirmed this by questioning that juror and a second
juror who had " raised concerns" about Juror No. 7.
The court thereafter excused Juror No. 7 and
seated an alternate. It made no inquiry of the accused juror
or of any of the remaining jurors, including the foreperson.
conclude the record does not show as a " demonstrable
reality" that Juror No. 7 failed to deliberate or was
otherwise unable to perform her duty. ( People v.
Cleveland (2001) 25 Cal.4th 466, 474-475 [106
Cal.Rptr.2d 313, 21 P.3d 1225] ( Cleveland );
Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th
1640, 1686 [26 Cal.Rptr.3d 638] ( Boeken ).) The
trial court consequently abused its discretion by discharging
her. This error was prejudicial in that the jury's
apportionment of liability between the State and the other
defendant was by a nine-to-three vote, and Juror No. 7 had
expressed her inclination to vote for the State. ( People
v. Hamilton (1963) 60 Cal.2d 105, 128 [32 Cal.Rptr. 4');">32 Cal.Rptr. 4,
383 P.2d 412] ( Hamilton ), overruled on other
grounds in People v. Morse (1964) 60 Cal.2d 631,
648-649 [36 Cal.Rptr. 201');">36 Cal.Rptr. 201, 388 P.2d 33], and disapproved on
other grounds in People v. Daniels (1991) 52 Cal.3d
815, 865-866 [277 Cal.Rptr. 122');">277 Cal.Rptr. 122, 802 P.2d 906].) Accordingly,
we remand the matter to the trial court for a retrial of the
apportionment issue. In all other respects, we affirm.
AND PROCEDURAL HISTORY
Highway 33 is a two-lane, north-south road, with a posted
speed limit of 55 miles per hour. The accident involving
Shanks and the other motorcyclist, Orlando Castellon,
occurred on a sharp, blind curve. The State had installed a
warning sign for northbound motorists informing them to
reduce speed to 25 miles per hour to safely negotiate the
curve, but there was no such sign for southbound motorists.
As a result, Castellon, who was traveling southbound, failed
to reduce his speed and lost control of his motorcycle as he
rounded the curve. He crossed over the center line and struck
Shanks head on. Shanks died at the scene.
is survived by his wife, Patricia, an adult son, Samuel
Shanks, and two minor children. His wife and adult son
(collectively respondents) filed this wrongful death action
individually and on behalf of the minor children.
presenting his closing argument, respondents' counsel,
Arash Homampour, moved to discharge Juror No. 7 for sleeping
as he argued. The State's counsel, Timothy Day, did not
believe the juror was sleeping. Day thought that "
[Juror No. 7] looked annoyed and frustrated at the arguments
being made by [respondents'] counsel, and she rolled her
eyes, and she went like this a few times, closing her eyes
with her hands on her eyebrows."
cocounsel, Farzad Yassini, also told the trial court that
Juror No. 7's eyes were closed during respondents'
opening and rebuttal arguments
and that " [i]t looked to [him] like she was
sleeping." In addition, the court reporter sent the
trial judge a note via the " realtime" system
stating that the juror was sleeping.
trial court, which had an obstructed view of the juror, could
not make a finding that Juror No. 7 was actually sleeping, as
opposed to listening to the argument with her eyes closed.
Consequently, the court declined to discharge the juror.
Cal.Rptr.3d 363] The jury deliberated for about 90 minutes
before being excused for the day. The following day Juror No.
2 called the trial court to inform it that one of the other
jurors was not adequately deliberating. After discussing the
issue with the parties, the court determined there was a
sufficient basis to inquire into Juror No. 2's complaint
about the other juror. Before making its inquiry, the court
stated that it planned on asking questions similar to those
set forth in Cleveland, supra, 25 Cal.4th 466, and
then specifically outlined the " leading" questions
it planned to ask. The State's counsel said he thought
the court should delay the inquiry to allow for more
deliberations but did not object to the questions or suggest
to questioning Juror No. 2, the trial court told the juror
that it was " absolutely critical" that " [w]e
can't know how any jurors are voting." The court
explained to the juror that it did not want her to disclose
" which way you are leaning" or " how any
other jurors are leaning." The court stated, "
I'm going to ask you a lot of leading questions,
yes-or-no questions to try and steer clear of you telling me
anything about what you or other members of the jury think
about the case."
response to the trial court's questions, Juror No. 2
identified Juror No. 7 as the juror who had " expressed
a fixed conclusion [about the outcome of the case] at the
beginning of deliberations." When the court asked
whether Juror No. 7 had listened to the views of other
jurors, Juror No. 2 responded, " Can I say not
well?" The court inquired, " And by 'not
well,' do you mean in terms of her giving feedback?"
The juror said, " Yes. Just very adamant." The
juror also identified Juror No. 1 as another juror who had
" raised concerns" about Juror No. 7.
conferring with counsel, the trial court asked Juror No. 2 if
it was her opinion that Juror No. 7 had prejudged the case
" at the outset of jury deliberations." The juror
responded, " Yes."
counsel requested that the trial court bring in Juror No. 1.
The court asked if the " defense [was] opposed,"
and the State's counsel responded, " No,"
although he thought it would be " better" to bring
foreperson to " tell us what his or her understanding of
the interactions are." The court indicated it may do
that, but decided to " speak with Juror No. 1 ...