P. v. Pitcher

1
Filed 9/6/17 P. v. Pitcher CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DARIN ALEXANDER PITCHER,
Defendant and Appellant.
A144718
(Contra Costa County
Super. Ct. No. 051213834)
Appellant Darin Alexander Pitcher sexually assaulted his sister over a several-
month period when he was 17 years old. He appeals from a judgment sentencing him to
prison for 21 years after a jury convicted him of two counts of sexual battery by restraint
(Pen. Code, §§ 243.4, subd. (a))1, five counts of forcible sexual penetration (§ 289, subd.
(a)(1)(A)), one count of forcible rape (§ 261, subd. (a)(2)) and one count of forcible oral
copulation (§ 288a, subd. (c)(2)(A)). Appellant contends: (1) the trial court should have
excluded evidence of incriminating statements he made to a police officer who delayed in
giving him warnings required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2)
the trial court erroneously removed a juror for failing to deliberate; (3) the case must be
remanded for a “fitness” hearing before a juvenile court judge pursuant to The Public
Safety and Rehabilitation Act of 2016 (Proposition 57), which was enacted while this
appeal was pending; and (4) the trial court erroneously believed full strength consecutive
1 Further statutory references are to the Penal Code unless otherwise indicated.

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sentences were required under section 667.6, subdivision (d). We agree the case must be
remanded for a fitness hearing under Proposition 57, but otherwise affirm.
BACKGROUND
Over an eight-month period beginning in October 2011, appellant sexually
assaulted his sister, Jane Doe, on several occasions. Appellant was 17 years old and Jane
was 14 and 15 at the time of these acts. Appellant, who was significantly bigger and
stronger than Jane, would enter her bedroom, remove her underwear and – against her
explicit wishes – either digitally penetrate her, have unwanted sexual intercourse with
her, or orally copulate her.
The incidents occurred while Jane and appellant were home alone. Jane was
scared of appellant, who had hit her in the past. At some point, she stopped putting up
physical resistance and only objected verbally. Appellant surreptitiously took nude
photographs and a video of Jane, which he used to blackmail her. He later deleted the
video and the intercourse stopped, but the penetration and oral copulation continued.
The abuse came to light on May 30, 2012, when Jane told her friend Gabriel R.
that appellant had been touching her inappropriately. Gabriel told his sister Taylor, who
was Jane’s best friend at the time, and Taylor confirmed this with Jane. Later that same
evening, appellant and Jane picked up Gabriel and Taylor to drive them to choir practice
at their church. Taylor confronted appellant about the abuse and appellant acknowledged
it was true but claimed he had stopped. Taylor called 911.
Pittsburg Police Officer Mike Keefe drove to the church in response to a report of
“child abuse.” After being briefed at the scene that appellant had inappropriately touched
his sister, Keefe transferred appellant to the back of his patrol car and spoke with him for
approximately five minutes, during which time appellant admitted having forcible sex
with Jane Doe on between 20 and 30 occasions. Keefe terminated the interview and
transported appellant to the police station, where appellant was advised of his Miranda
rights and gave a lengthy interview in which he detailed an eight-month period of forcible
sexual assaults against Jane. Appellant admitted acts that included sexual penetration,
sexual intercourse, and oral copulation.

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Officer Keefe conducted a brief, unrecorded, interview with Jane and her mother.
Jane confirmed appellant had been forcing himself on her sexually for eight months. She
said the assaults occurred in her bedroom at least once a week while she was home alone
during the day, with the last incident having occured approximately two weeks earlier.2
The district attorney filed an information charging appellant with 20 felony
counts: two counts of sexual battery by restraint (counts 1 and 2; § 243.4, subd. (a)), five
counts of forcible sexual penetration (counts 3-7; § 289, subd. (a)(1)(A)), ten counts of
forcible rape (counts 8-17; § 261, subd. (a)(2)), two counts of forcible oral copulation
(counts 18 and 19; § 288a, subd. (c)(2)(A)), and one count of attempted forcible oral
copulation (count 20; §§ 664/288a, subd. (c)(2)(A)). The jury found appellant guilty of
the two counts of sexual battery by restraint (counts 1 and 2), the five counts of forcible
sexual penetration (counts 3-7), one count of forcible rape (count 8) and one count of
forcible oral copulation (count 18). It hung on the remaining ten counts.
The court denied appellant’s motion for new trial and sentenced him to prison. It
imposed consecutive three-year lower terms on each of the sexual penetration, rape and
oral copulation counts, ordering those sentences to run at full strength under section
667.6, subdivision (d), due to the crimes having been committed on separate occasions.
Concurrent terms of 16 months each were imposed on the sexual battery counts.
Appellant’s aggregate sentence was 21 years.
DISCUSSION
I.
Effect of Initial Interview Without Miranda Advisements
Appellant argues the trial court erred when it denied his pretrial motion to
suppress his statements to police on the ground he should have been advised of his
2 Jane was a reluctant witness at trial and refused to testify until the trial court
explained she could be held in contempt if she failed to do so. When she did testify, she
recanted many aspects of her earlier statement, particularly with respect to the forcible
nature of appellant’s conduct. Jane’s mother testified for the defense and denied Jane had
made most of the statements described by Officer Keefe.

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Miranda rights when he first spoke to Officer Keefe in the back of the patrol car. We
disagree.
a. Background
The evidence introduced during the hearing on the motion to suppress was as
follows:
On May 30, 2012, Contra Costa sheriff’s deputies responded to a call at the First
Pentecostal Church and found appellant, Jane Doe, their parents and some friends in the
parking lot. Jane spoke with a deputy inside a patrol car and told him appellant had been
molesting her in the family home, which was located within the city of Pittsburg.
Appellant was placed in the back of a Sheriff’s Department patrol car to await the arrival
of Pittsburg Police Department officers, but he was not handcuffed.
Pittsburg Police Department Officer Mike Keefe arrived at the scene, where he
spoke with Sergeant Daniels of the Sheriff’s Department and learned appellant was
suspected of “inappropriate touching.” Keefe moved appellant to the inside of his own
patrol vehicle and closed the door and told him he was not under arrest. After speaking
briefly with appellant’s parents, Keefe returned to the patrol car where he opened the
door and knelt down to appellant’s seated level to speak with him. Appellant’s legs were
outside of the car. Keefe reiterated that appellant was not under arrest and asked
appellant if he knew why police had been called. Appellant responded that one of Jane’s
friends had called the police to report that appellant was touching Jane inappropriately.
Keefe thought maybe they had been experimenting with sexuality being that they were
both young, and appellant said no, he had been touching his sister underneath her
underwear on her vagina and rubbing her breasts. When asked “Is that it?” appellant
responded that they had been having sexual intercourse as well. O’Keefe asked appellant
how many times that had happened and appellant said 20 to 30 times.
After hearing this, Officer Keefe decided the interview should be continued at the
police station. He asked appellant to put his legs back inside the car and shut the door
without placing appellant in handcuffs. At Keefe’s request, appellant’s parents followed

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them to the station. Keefe estimated 20 or 25 minutes had elapsed between his arrival at
the church parking lot and his departure with appellant.
Once at the station, Officer Keefe placed appellant in an interview room. He
offered appellant’s parents the opportunity to be present while he conducted the
interview, but neither elected to do so. Appellant’s father left the building, disgusted, and
the mother chose to stay with Jane. Keefe briefly spoke with Jane, and then returned to
the interview room. Although he told appellant he was not under arrest, Keefe read
appellant his Miranda rights. Appellant then voluntarily disclosed numerous lewd
touchings as well as acts of forcible rape, penetration, and oral copulation.
The trial court denied the motion to suppress appellant’s statements, concluding
the conversation with Officer Keefe inside the patrol car was not a custodial interrogation
within the meaning of Miranda. The court additionally found that even assuming the
statement in the patrol car was custodial in nature, it was voluntarily given and did not
taint the subsequent statement at the police station, which was preceded by adequate
Miranda warnings.
b. Standard of Review
In reviewing appellant’s Miranda claim, “. . .we accept the trial court's resolution
of disputed facts and inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from the undisputed facts and the
facts properly found by the trial court whether the challenged statement was illegally
obtained.” (People v. Cunningham (2001) 25 Cal.4th 926, 992; see also People v.
Thomas (2011) 51 Cal.4th 449, 476.)
c. Analysis
Miranda establishes that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. By custodial interrogation, we mean questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444.)

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In Oregon v. Elstad (1985) 470 U.S. 298, 318 (Elstad), the United States Supreme
Court held that a suspect who responds to “unwarned yet uncoercive questioning” in a
custodial setting may later waive his rights and confess after being given a proper
Miranda warning. In other words, when “a prior custodial statement, though obtained
without Miranda warnings, was otherwise uncoerced, any taint upon a second statement
is dissipated by a determination that the second statement was itself voluntary and
obtained without a Miranda violation.” (People v. Storm (2002) 28 Cal.4th 1007, 1030.)
“Moreover, a later statement obtained in compliance with Miranda, and without coercive
methods of interrogation, is not to be presumed involuntary simply because the suspect
has already incriminated himself. ‘ “[A]fter an accused has once let the cat out of the bag
by confessing, no matter what the inducement, he is never thereafter free of the
psychological and practical disadvantages of having confessed. . . . But this Court has
never gone so far as to hold that making a confession under circumstances which
preclude its use, perpetually disables the confessor from making a usable one after those
conditions have been removed.” ’ ” (Ibid., citing Elstad, at p. 311.)
Even if we assume appellant was in custody when he first spoke to Officer Keefe
in the patrol car, appellant has made no claim that his initial statement was coerced or
otherwise involuntary. Defense counsel conceded below that appellant was adequately
advised of his Miranda rights before he made his second statement at the police station,
which was far more detailed and incriminating. Because this second statement was
plainly admissible under Elstad, supra, 470 U.S. at page 318, any error in allowing
evidence of the first statement to Officer Keefe was harmless beyond any reasonable
doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Lujan (2001) 92
Cal.App.4th 1389, 1410.)
Appellant argues his statements should be excluded under Missouri v. Seibert
(2004) 542 U.S. 600, 617, 622, in which the United States Supreme Court held
unconstitutional a two-step police protocol that utilized successive interrogations to
produce unwarned confessions, which were then reaffirmed after Miranda warnings. We
are not persuaded.

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As explained in People v. Camino (2010) 188 Cal.App.4th 1359, 1368, the
plurality holding of Siebert applies only to cases in which the police acted deliberately to
withhold warnings until after a suspect confesses. The trial court expressly found there
was no such deliberate process in this case, a factual determination to which we defer.
(Id. at pp. 1372, 1376.) Officer Keefe testified that when he first spoke to appellant, it
was not even clear to him that a crime had been committed. When appellant admitted
serious sexual contact with his sister, Keefe promptly terminated the interview and
transported appellant to the police station where he was Mirandized before any additional
questioning took place. The evidence in this case did not support an inference that Keefe
decided to delay giving appellant a Miranda warning as part of any deliberate strategy,
and substantial evidence supported the trial court’s determination to that effect.
II.
Removal of Juror For Failure to Deliberate
Appellant seeks reversal of his convictions of forcible rape and forcible oral
copulation under counts 8 and 18 on the ground that those counts were rendered after the
court had improperly removed a juror based on her purported failure to deliberate. We
reject the claim.
a. Background
The jury retired for deliberations shortly before 4:00 p.m. on Monday,
December 8, 2014, and continued to deliberate on Tuesday, December 9 and into the
following morning. At 2:25 p.m. on Wednesday, December 10, the foreperson sent the
court a jury note stating the jury had reached a verdict on counts 1-7 and were hung on
the remaining counts. The court conferred with counsel and brought the jury into the
courtroom where it accepted the verdicts reached thus far. Having instructed the jurors
not to reveal their numerical division on the remaining counts or “which way the vote is
going,” the court instructed the jurors to continue deliberating with the goal of reaching
“a fair and impartial verdict, if you are able to do so.” At 4:30 p.m., just before
adjourning for the evening, the jury sent another note stating, “When coming back into
the jury deliberation room, some people specifically said ‘[t]here’s nothing you can say

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or show me that will change my mind.’ What do we do then?” The court sent a note the
following morning urging them to continue their deliberations in light of the instructions
given.
At 1:50 p.m. on Thursday, December 11, the jury sent a note to the court stating,
“There is a juror, # 2, who is completely, and admittedly, disengaged. Can she be
removed for an alternate?” The court conferred with counsel and framed the issue as
whether Juror No. 2 had engaged in deliberations for a reasonable period of time after the
verdicts were returned on counts 1 through 7.
The court questioned the foreperson (Juror No. 12) outside the presence of the
other jurors, and he indicated that Juror No. 2 had stopped deliberating no later than mid-
day on Tuesday. He advised the court that Juror No. 2’s reluctance to engage was so
apparent that it was “actually brought up in the jury room.” When asked to confirm that
Juror No. 2 had stopped deliberating on mid-day Tuesday, the foreperson said, “I
wouldn’t even say she participated in meaningful discussion before then.”
The court then questioned Juror No. 2 outside the presence of the other jurors and
the following exchange occurred: “THE COURT: . . . . [¶] I asked you to come in this
afternoon, because as you assume, the foreman has indicate[d] to us that you have
disengaged from the process of deliberations. [¶] JUROR NO. 2: That is his opinion.
[¶] THE COURT: . . . . [¶] . . . . [¶] . . . . [W]hy don’t you tell me what your position is
on whether you are willing and able to continue deliberations with the other jurors. [¶]
JUROR NO. 2: Yes. [¶] THE COURT: Okay. And do you feel that there has been any
point where you have declined to engage in the negotiations – or I should say
deliberations. [¶] JUROR NO. 2: I don’t even really know what that means. [¶] THE
COURT: Well, there’s a difference between having a discussion and having
disagreement and not being willing to have a discussion. [¶] In other words, you’re
either shutting down, not communicating, not expressing your views. [¶] JUROR NO. 2:
I have expressed my views many times. [¶] THE COURT: Okay. And have you
listened to and considered the other jurors’ views? [¶] JUROR NO. 2: Yes, I have.”
In light of the “rather divergent perspectives” between the foreperson and Juror

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No. 2, and with the agreement of both counsel, the court questioned the other jurors
individually. Juror No. 1 stated that Juror No. 2 had stopped deliberating immediately
after they had “finalized” the verdicts on the first seven counts on Wednesday morning.3
Her expressions of her point of view had not seemed of the “deliberating kind,” or “open
to discussion” and she would say things like, “I feel like I’m repeating myself, so I don’t
see why I should engage more.”
Juror No. 3 did not think it appeared that Juror No. 2 was “fully disengaged,” but
it seemed like “maybe she’s not focusing.” She had shared her views with the other
jurors that morning (Thursday) but had stated the jury was going over the same ground
and “she feels like she’s heard this before and doesn’t need to pay attention again.”
Juror No. 4 noted that Juror No. 2 seemed disengaged “[p]retty much all day
yesterday [Wednesday] and today [Thursday] she is refusing to engage in the
conversation at all.” Juror No. 2 had been looking down most of the time when the rest
of the jury was talking and when the reporter was doing readbacks of the testimony.
When another juror commented on Juror No. 2 doing crossword puzzles, Juror No. 2
admitted as much and said it was because she had “already heard this and this is just
repeated information.”
Juror No. 5 similarly told the court that Juror No. 2 became disengaged some time
on Tuesday and had stopped expressing her views on Wednesday, after saying she was
repeating herself and there was no point to keep talking about it. Juror No. 5 believed
Juror No. 2 seemed “very defensive” and she had been doing crossword puzzles rather
than discussing the evidence: “She said she is not going to be convinced of anything and
she’s already made up her mind.”
Juror No. 6 similarly believed Juror No. 2 was “disengaged from the process”
because she had been doing crossword puzzles while the rest of the jury was reviewing
3 Although the jurors did not advise the court they had reached a partial verdict until
2:55 p.m. on Wednesday, December 10, it appears they took an initial vote on those
counts on Tuesday, December 9 and took a final vote on those counts on Wednesday
morning.

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the evidence or listening to the court reporter read back requested testimony. Though
Juror No. 2 had been involved in the discussion on Monday afternoon when the jury first
received the case, she was disengaged by Tuesday afternoon “and all day yesterday
[Wednesday] and today [Thursday].” While she had made the “occasional comment”
and might have made “one or two comments” that day (Thursday),” Juror No. 2 “for the
most part wouldn’t get involved in discussions and didn’t appear to want to be involved
in the discussion.”
Juror No. 7 indicated that Juror No. 2 had not said very much, but “it might be the
way she processes things, taking a step back.” She had expressed her views in the case as
late as that morning (Thursday) and had also done so “a couple of times yesterday, maybe
like one time yesterday (Wednesday).” When she wasn’t talking, she was “looking down
and she could be doodling, but I . . . can’t see what she is doing exactly.”
Juror No. 8 was one of the jurors who originally prompted the investigation,
noting Juror No. 2 had been doing crossword puzzles “at least from Tuesday on” and told
the other jurors after the readback that “there is nothing we can tell her to change her
mind. There is no additional evidence we can show her to change her mind, she stated
that.” When Juror No. 8 requested that Juror No. 2 and other jurors give the court
reporter 100 percent of their attention during a readback, Juror No. 2 “was combative and
said that she thought that was unreasonable and I was being childish in asking for it, and
specifically said that she chooses to do her word puzzle when she feels that we are having
conversation that is repetitive and she doesn’t need to be involved in it.”
Juror No. 9 was also one of the jurors who prompted the investigation,
complaining that Juror No. 2 had been disengaged and doing crossword puzzles “pretty
much since we’ve been deliberating.” She had expressed her views “[v]aguely” and “did
mention, when I brought it up, that she does disengage herself from the conversation.”
The last time Juror No. 2 had described her view of the case was “maybe yesterday
[Wednesday].”
Juror No. 10 observed that Juror No. 2 was “distracted,” “doing other things,” and
“[w]ithdrawing from conversations and not taking part.” She had become disengaged

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after the jury had delivered the partial verdicts on Wednesday afternoon, but had made a
statement regarding her views “first thing this morning [Thursday].”
Juror No. 11, in contrast, believed Juror No. 2 was “absolutely” engaging in
deliberations, but not “all the time.” Juror No. 2 had described her opinion of the case to
the rest of the group and had most recently done so that morning.
After hearing the responses from the jurors, the district attorney asked the court to
excuse Juror No. 2 based on her failure to deliberate in a meaningful fashion. Defense
counsel disagreed Juror No. 2 should be excused, arguing she had participated in the
deliberations sufficiently to join in the guilty verdicts on counts 1 through 7 and that her
disengagement was a product of having already heard the material being discussed.
Counsel noted Juror No. 2 had expressed her views as recently as that morning.
The trial court granted the district attorney’s request to excuse Juror No. 2. It
indicated the question was whether the juror was refusing to deliberate versus having a
difference of opinion as to the merits of the case, and noted a “very strong majority” of
jurors had stated that Juror No. 2 had disengaged starting Tuesday morning.
It appeared to the court the jury had tentatively reached its partial verdict on Tuesday and
had finalized it on Wednesday. Based on the various comments of her fellow jurors, the
court inferred that Juror No. 2 “did begin to stop full deliberations Tuesday morning
when she was starting, spending more time – spending time working on crossword
puzzles rather than engaging in the deliberative process. She did participate in the
verdicts on Counts 1 through 7. As to the remaining counts she stopped deliberating.
And by deliberating, I mean not just expressing her own views, but listening to and
considering the views of the other jurors, which is half the process. [¶] She clearly was
willing to state her views as recently as this morning, but I don’t believe that she has
listened to or considered the views of the remaining jurors since sometime Tuesday on
the remaining counts.”
In ruling on appellant’s motion for new trial, which was based on part on the
court’s order excusing Juror No. 2, the court stated the following: “I did make the
comment that the majority of the jurors placed that timeframe [for Juror No. 2’s

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disengagement from deliberations] at Tuesday. What I meant by that is that five of the
jurors in my view placed her as stopping to deliberate on Tuesday, which was really the
first full day of deliberations.”4 The court also observed: “I did not find Juror Two’s
testimony to be credible at all because she did not acknowledge any disengagement or
refusal to deliberate where I think everyone except one other juror were consistent in
believing that she had disengaged.”
b. General Principles and Standard of Review
Section 1089 provides, in pertinent part: “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 [her] duty, or if a juror requests
a discharge and good cause appears therefor, the court may order [her] to be discharged
and draw the name of an alternate, who shall then take [her] place in the jury box, and be
subject to the same rules and regulations as though the alternate juror had been selected
as one of the original jurors.” (See also Code Civ. Proc., §§ 233, 234.) This statute
allows the court to remove a juror who refuses to deliberate, “on the theory that such a
juror is ‘unable to perform [her] duty’ within the meaning of [] section 1089.” (People v.
Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).) “Examples of refusal to deliberate
include, but are not limited to, expressing a fixed conclusion at the beginning of
deliberations and refusing to consider other points of view, refusing to speak to other
jurors, and attempting to separate oneself physically from the remainder of the jury.” (Id.
at p. 485.)
When deciding whether to excuse a juror for failing to deliberate, the trial court
must make an appropriate inquiry in order to have “the requisite facts upon which to
decide whether [the removed juror had] in fact failed to carry out her duty as a juror to
deliberate or whether the jury’s inability to reach a verdict was due, instead, simply to
4 Juror Nos. 5, 6, 8, 9 and 12 (the last one being the foreperson) specifically stated
that Juror No. 2 had become disengaged sometime on Tuesday. Jurors 1, 4 and 10
believed she had disengaged sometime on Wednesday, the date the partial verdict was
returned.

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[the removed juror’s] legitimate disagreement with the other jurors.” (People v.
Castorena (1996) 47 Cal.App.4th 1051, 1066 (Castorena).) The court is not required to
take a juror’s verbal declarations at face value when they conflict with her behavior and
demeanor. (See People v. Lucas (1995) 12 Cal. 4th 415, 489; People v. Diaz (2002) 95
Cal.App.4th 695, 699–705.)
The trial court’s determination of good cause under section 1089 is subject to
review for abuse of discretion, but the inability of the juror to perform “his or her duty
‘must appear in the record as a demonstrable reality.’ [Citations.]” (People v. Armstrong
(2016) 1 Cal.5th 432, 450.) This standard, which is more stringent than the deferential
substantial evidence test, “requires a showing that the court as trier of fact did rely on
evidence that, in light of the entire record, supports its conclusion [that good cause] was
established. It is important to make clear that a reviewing court does not reweigh the
evidence under either test. Under the demonstrable reality standard, however, the
reviewing court must be confident that the trial court’s conclusion is manifestly supported
by evidence on which the court actually relied.” (People v. Barnwell (2007) 41 Cal.4th
1038, 1052–1053 (Barnwell).)
c. Analysis
The trial court in this case determined, as a factual matter, that Juror No. 2 had
been involved in deliberations until unanimous agreement on the first seven counts had
been reached, but had then disengaged in the process. This factual conclusion was
supported by the record, because the majority of jurors advised the court that Juror No. 2
had stopped participating in deliberations at a time no later than just after the partial
verdict was returned on counts 1 through 7. (See footnote 4, ante.) Though Juror No. 2
denied she was disengaged, the trial court did not believe her. “[W]e afford deference to
the trial court’s factual determinations, based, as they are, on firsthand observations
unavailable to us on appeal.” (Barnwell, supra, 41 Cal.4th at p. 1053.) The “totality of
the evidence” supports the trial court’s decision to remove Juror No. 2 from the jury.
(Ibid.)

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It is true “[a] juror who has participated in deliberations for a reasonable period of
time may not be discharged for refusing to deliberate, simply because the juror
expresse[d] the belief that further discussion will not alter his or her views. [Citation].)”
(Cleveland, supra, 25 Cal.4th at p. 485.) But that is not what happened here. Crediting
the factual determinations actually made by the trial court in this case (Barnwell, supra,
41 Cal.4th at p. 1053), Juror No. 2 did not simply advise the other jurors she had reached
the point in deliberations where further discussion would not be of assistance. Rather,
she withdrew from the discussions and shifted her attention to her crossword puzzles, an
inherently distracting activity and one that has been held to constitute juror misconduct
when engaged in by jurors while evidence is being taken at trial. (Hasson v. Ford Motor
Co. (1982) 32 Cal.3d 388, 410, 413.)5 Working a crossword puzzle while the other jurors
deliberated put a virtual if not an actual wall between Juror No. 2 and the rest of the jury,
and the activity could reasonably have been viewed by the trial court as tantamount to
“attempting to separate oneself physically from the remainder of the jury.” (Cleveland,
supra, 25 Cal.4th at p. 485; see Diaz, supra, 95 Cal.App.4th at pp. 699–705 [juror
properly removed for failure to deliberate when she did not participate in a discussion of
the facts due to her apparent distress over her perception of being attacked by other
jurors]; People v. Thomas (1994) 26 Cal.App.4th 1328, 1333 [juror properly removed
when, among other things, he did not answer questions posed by other jurors during
deliberations, did not sit at the table with them, and acted as though he had already made
up his mind].)
This case is distinguishable from Castorena, supra, 47 Cal.App.4th 1051, in which
the trial court was held to have abused its discretion when it dismissed a juror for failing
to deliberate. In Castorena, the court had received a 15-page document from the accused
juror contradicting earlier allegations of misconduct against her and raising new
5 This misconduct was deemed harmless in Hasson, in which the court considered
whether a motion for new trial based on the juror misconduct was properly denied, not
whether a juror should have been excused based on evidence that came to light during
deliberations. (See Hasson, supra, 32 Cal.3d at pp. 417–418.)

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allegations of juror misconduct against a different juror, yet it had failed to conduct an
inquiry on the information contained in the document. (Id. at p. 1066.) Here, by contrast,
the court made a thorough inquiry of each juror and considered all the available evidence
regarding the issue before it.
Also distinguishable is People v. Bowers (2001) 87 Cal.App.4th 722, in which the
trial court was held to have abused its discretion in discharging a juror based on his
inattentiveness and failure to deliberate. (Id. at pp. 724, 735.) The juror in Bowers had
participated in the group discussions and a request for a readback of certain testimony,
but did not change his opinion—formulated early on—that a crucial prosecution witness
was not believable. (Id. at pp. 731–735.) With respect to the juror’s claimed
inattentiveness, the court observed, “The problem with the deliberations was that the
jurors were at [an] impasse, not that Juror No. 4 was inattentive.” (Id. at p. 731.) And
with respect to his purported failure to deliberate, the court emphasized that deliberations
do not require a formal discussion. “It cannot be said a juror has refused to deliberate so
long as a juror is willing and able to listen to the evidence presented in court, to consider
the evidence and the judge’s instructions, and to finally come to a conclusion and vote,
which is precisely what Juror No. 4 did.” (Id. at p. 735.) While the juror in Bowers
remained steadfast in his original assessment of the evidence, he did not distance himself
from the deliberations in the same manner as Juror No. 2 in this case.
The trial court did not abuse its discretion in removing Juror No. 2 from the jury
based on her failure to deliberate.
III.
Proposition 57
Appellant was 17 years old when he committed the crimes in this case. The
prosecutor directly filed the charges against him in adult court, as was permitted under
former Welfare and Institutions Code section 707, subdivisions (b) and (d)(1) and (2),
rather than filing a wardship petition in juvenile court. On November 8, 2016, while this
appeal was pending, California voters enacted Proposition 57, which amended Welfare
and Institutions Code sections 602 and 707 to eliminate direct filing by prosecutors.

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(Prop. 57, § 4.2.) Under Proposition 57, all charges against juveniles must now be
initially filed in juvenile court. (Welf. & Inst. Code, §§ 602, 707, subd. (a).) Though a
district attorney may make a motion to transfer certain cases to adult court, the juvenile
court is charged with making the decision and may do so only after it holds a hearing to
consider such factors as the minor’s maturity, degree of criminal sophistication, prior
delinquent history, and potential for rehabilitation. (Welf. & Inst. Code, § 707, subd. (a).)
In response to our request for supplemental briefing, appellant argues that
Proposition 57’s elimination of direct filing is an ameliorative provision that must be
retroactively applied to defendants like him, whose cases are not yet final on appeal. He
argues that although Proposition 57 is silent on the issue of retroactivity, the voters
clearly intended to broaden the number of minors who could stay within the juvenile
justice system with its emphasis on rehabilitation over punishment. Appellant also asks
us to apply the rule of In re Estrada (1965) 63 Cal.2d 740, 744–745 (Estrada), under
which a statute reducing the penalty for an offense is presumed to apply to cases not yet
final. The Attorney General responds that Proposition 57 does not effect a reduction in
punishment, and is presumed to apply prospectively only, at least as to cases that have
not yet gone to trial. (See Pen. Code, § 3.)
These arguments have been thoroughly analyzed in a series of recent court of
appeal decisions, and the issue of Proposition 57’s retroactivity is currently pending
before our Supreme Court. (See People v. Cervantes (2017) 9 Cal.App.5th 569, review
granted May 17, 2017, A140464 [Proposition 57 is not retroactive, though as to counts
reversed for a retrial, Proposition 57 does apply and requires a fitness hearing to
determine where that retrial will be held]; People v. Mendoza (2017) 10 Cal.App.5th 327,
review granted July 12, 2017, H039705 [Proposition 57 is not retroactive]; People v. Vela
(2017) 11 Cal.App.5th 68, review granted July 12, 2017, G052282 (Vela), [Proposition
57 is retroactive; convictions conditionally reversed and remanded to juvenile court for a
fitness hearing]; People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, review
granted May 17, 2017, E067296 [where crime was committed before effective date of
Proposition 57 but case had not yet been tried, defendant was entitled to fitness hearing to

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determine whether case could proceed in adult court; although Proposition 57 is not
retroactive, requiring a fitness hearing under these circumstances does not amount to
retroactive application of the law because the trial has not yet been held]; People v.
Marquez (May 16, 2017) 11 Cal.App.5th 816, review granted July 26, 2017, F070609
[Proposition 57 not retroactive]; People v. Superior Court (Walker) (2017) 12
Cal.App.5th 687 [Proposition 57 not retroactive]; People v. Pineda (Aug. 14, 2017
B267885) __ Cal.App.5th __ [2017 Cal.App.Lexis 706] (Pineda) [Proposition 57 is
retroactive].)
Though the majority of appellate courts to consider the issue so far have reached a
different result, we adopt the reasoning of Vela, supra, 11 Cal.App.5th 68 and Pineda,
supra, __ Cal.App.5th __ [2017 Cal.App.Lexis 706] and conclude that Proposition 57
applies retroactively to cases pending on appeal. Given that the issue will be resolved by
our Supreme Court, we need not elaborate on the reasoning of our colleagues to the
south. We note, however, that a retroactive application of Proposition 57 is fully
consistent with the relatively recent “sea change in penology regarding the relative
culpability and rehabilitation possibilities for juvenile offenders” (Vela, at p. 75), as well
as with one of the stated purposes of Proposition 57 itself, namely, to “[r]equire a judge,
not a prosecutor, to decide whether juveniles should be tried in adult court.” (Voter
Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and
Rehabilitation Act of 2016, § 2 (5), p. 141.) We are also persuaded that the potential for
a juvenile disposition in lieu of a prison sentence, which would almost certainly result in
significantly less time in custody for a defendant found to have committed a crime for
which direct filing was formerly available, effects a reduction in punishment within the
spirit of Estrada, supra, 63 Cal.2d at p. 744, even if it does not lower the penalty for a
particular offense.
Accordingly, the case must be conditionally remanded for a fitness hearing before
the juvenile court, at which that court should, “to the extent possible, treat the matter as
though the prosecutor had originally filed a juvenile petition in juvenile court and had

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then moved to transfer [the] cause to a court of criminal jurisdiction.” (Vela, supra, 11
Cal.App.5th at p. 82.)
IV.
Mandatory Consecutive Sentences under § 667.6 subdivision (d)
Section 667.6, subdivision (d), requires full strength consecutive sentences for
enumerated sexual offenses “if the crimes involve separate victims or involve the same
victim on separate occasions.” The trial court imposed full strength consecutive
sentences for appellant’s convictions of forcible sexual penetration, forcible rape and
forcible oral copulation, concluding the crimes had been committed on separate occasions
within the meaning of section 667.6, subdivision (d). Appellant argues that because the
prosecution did not assign a particular date for any of the offenses, and because the jury
did not determine whether the offenses occurred on separate occasions, the mandatory
consecutive sentencing provisions of section 667.6, subdivision (d), do not apply. We
disagree.6
Forcible sexual penetration, forcible rape and forcible oral copulation are all
offenses governed by section 667.6, subdivision (d). (§ 667.6, subd. (e)(1), (7) & (8).)
The trial court, rather than the jury, may determine whether such offenses were
committed on separate occasions when that issue is not established by the verdict in the
case. (People v. Wilson (2008) 44 Cal.4th 758, 813 [Sixth Amendment does not require
jury finding to impose mandatory consecutive sentences under § 667.6, subd. (d)].)
“In determining whether crimes against a single victim were committed on
separate occasions under this subdivision, the court shall consider whether, between the
commission of one sex crime and another, the defendant had a reasonable opportunity to
reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.
Neither the duration of time between crimes, nor whether or not the defendant lost or
abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the
6 Although we are remanding the case for a fitness hearing to determine whether
appellant’s case should be handled in the juvenile court, we consider this issue on the
merits in the event the judgment is ultimately reinstated.

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issue of whether the crimes in question occurred on separate occasions.” (§ 667.6, subd.
(d).) “Once a trial judge has found under section 667.6, subdivision (d), that a defendant
committed offenses on separate occasions, we may reverse only if no reasonable trier of
fact could have decided the defendant had a reasonable opportunity for reflection after
completing an offense before resuming his assaultive behavior.” (People v. Garza (2003)
107 Cal.App.4th 1081, 1092.)
Appellant was convicted of five counts of forcible sexual penetration, one count of
forcible rape, and one count of forcible oral copulation. Neither Jane Doe nor appellant
recalled specific dates in their statements to the police and the information alleged each
offense was committed “[o]n or about October 2011 through May 29, 2012.” The verdict
forms similarly stated a date range of “October 2011 through May 29, 2012.” It was
clear from the evidence, however, that none of the forcible sexual offenses were
committed during the same incident, much less during the same “occasion” for purposes
of section 667.6, subdivision (d).
In his Mirandized statement to Officer Keefe, appellant said the sexual contact
with Jane Doe began during an incident where they were wrestling and he accidentally
touched her. At some point after that he “forced [himself] on her to have — to have sex
with her,” but before that he had put his finger inside her vagina “maybe like five” times.
Appellant described the first time he had intercourse with Jane in some detail. He
thought she knew what was going to happen because he had “put [his] fingers in her
before,” but he denied putting his fingers inside Jane or orally copulating her on that
occasion. He did, however, orally copulate her on other occasions, “like five” times, later
revised to an estimate of “two or three times” “maybe like towards the end when I like
started to stop.” Prior to the first time they had intercourse, appellant had never “put his
mouth on her.”
Appellant told Officer Keefe that after they had intercourse for the first time, he
continued to force Jane to have intercourse “maybe like once every other week or
something.” In each of these incidents appellant would have Jane lie down on the bed,
would struggle to remove her underwear, and would lie on top of her. Appellant never

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used his mouth on Jane and then put his penis inside her afterward. The most recent
sexual assault against Jane was an incident in her bedroom a few months prior to the
interview, during which she took her clothes off at appellant’s direction and he put his
fingers inside her vagina “one [or] two times.” He did not take his own clothes off and
“that was like the end of it.”
Jane similarly recounted that appellant had penetrated her with his finger “several
times” before the first act of intercourse. She described the first act of intercourse, but at
some point would start blacking out when appellant raped her so she could not estimate
how many times he committed similar acts. After appellant deleted the video he had used
to blackmail her, the intercourse stopped and appellant would put his mouth on her
vagina instead.
Based on the evidence, the trial court could have reasonably found the five counts
of forcible sexual penetration were based on five completely separate incidents preceding
the first act of intercourse, and the act of oral copulation was committed at a later date.
There is no suggestion any of the acts of sexual penetration were themselves committed
on the same day except for the final sexual assault in which appellant placed his finger
inside Jane’s vagina “one [or] two times.” Appellant was also clear he did not penetrate
Jane with his fingers or orally copulate her when he forced her to have intercourse on the
specific occasion he described. The court did not err in concluding the crimes were
committed on separate occasions making consecutive sentences mandatory under section
667.6, subdivision (d).
DISPOSITION
The judgment is conditionally reversed. The case is remanded to the juvenile
court with directions to conduct a fitness hearing under Welfare and Institutions Code
section 707, subdivision (a), no later than 90 days from the filing of the remittitur. If, at
the fitness hearing, the court determines it would have transferred appellant to a court of
criminal jurisdiction because he is “not a fit and proper subject to be dealt with under the
juvenile court law” (Welf. & Inst. Code, 707.1, subd. (a)), then the judgment shall be
reinstated. If, at the fitness hearing, the court finds it would not have transferred the case

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to a court of criminal jurisdiction, it shall treat appellant’s convictions as juvenile
adjudications and shall impose an appropriate disposition under juvenile law.

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NEEDHAM, J.
I concur.
SIMONS, ACTING P.J.

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(A144718)

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BRUINIERS, J., Concurring and dissenting.
I agree with my colleagues in all respects save one. I continue to disagree that the
Public Safety and Rehabilitation Act of 2016 (Proposition 57) is to be given retroactive
effect in circumstances such as here, and I would affirm the judgment unconditionally.
Proposition 57, which became effective November 9, 2016, eliminated the
People’s ability to directly file criminal charges against a minor in an adult court. The
majority acknowledges that Proposition 57 is silent as to the initiative’s retroactive
application. The presumption, therefore, is that it is not retroactive. (Pen. Code, § 3 [no
part of the Penal Code is retroactive “unless expressly so declared”]; People v. Brown
(2012) 54 Cal.4th 314, 319 [the default rule of Pen. Code, § 3 codifies “ ‘the time-
honored principle . . . that in the absence of an express retroactivity provision, a statute
will not be applied retroactively unless it is very clear from extrinsic sources that the
Legislature . . . must have intended a retroactive application’ ”]; In re Estrada (1965)
63 Cal.2d 740, 746 (Estrada) [“when there is nothing to indicate a contrary intent in a
statute it will be presumed that the Legislature intended the statute to operate
prospectively and not retroactively”].) “ ‘ “[A] statute that is ambiguous with respect to
retroactive application is construed ... to be unambiguously prospective.” ’ ” (Brown, at
p. 320.)1
The majority would apply, however, the ameliorative rule of Estrada, providing
for retroactive application of a statutory amendment reducing punishment for an act
committed before the amendment, but for which a defendant was sentenced after the
amendment. In Estrada, the Supreme Court held that, notwithstanding Penal Code
section 3, “[w]hen the Legislature amends a statute so as to lessen the punishment it has
obviously expressly determined that its former penalty was too severe and that a lighter
punishment is proper as punishment for the commission of the prohibited act. It is an
1 In interpreting a voter initiative, we apply the same principles that govern statutory
construction. (People v. Arroyo (2016) 62 Cal.4th 589, 593.)

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inevitable inference that the Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply to every case to which
it constitutionally could apply. The amendatory act imposing the lighter punishment can
be applied constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.)
“Estrada, which creates a presumption of retroactivity in apparent contradiction to the
default rule [of Penal Code section 3], has been confined by subsequent decisions to its
‘ “specific context.” ’ ” (People v. Davis (2016) 246 Cal.App.4th 127, 135, review
granted July 13. 2016, S234324; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1196,
disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Two other appellate courts, in published opinions, have applied Proposition 57
retroactively, relying upon the rationale of Estrada. In People v. Vela (2017)
11 Cal.App.5th 68, review granted July 12, 2017, S242298, Division Three of the Fourth
District held that the electorate intended the benefits of Proposition 57 to apply to every
minor to whom it may constitutionally apply, including the defendant whose conviction
was on appeal. (Id. at p. 81; see id. at p. 71.) The Vela court conditionally reversed and
ordered a remand for the juvenile court to conduct a juvenile transfer hearing under
Welfare and Institutions Code section 707, the remedy the majority proposes here. (Vela,
at pp. 82–83.) More recently, a majority in Division Five of the Second District adopted
Vela’s rationale in reaching a similar result. (People v. Pineda (Aug. 14, 2017, B267885)
___ Cal.App.5th ___ (Pineda) [2017 Cal.App.Lexis 706].) My colleagues in the majority
also find the reasoning of Vela persuasive. I do not.
Every other court to examine the issue so far in a published opinion has reached a
contrary conclusion. (People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687;
People v. Marquez (2017) 11 Cal.App.5th 816, review granted July 26, 2017, S242660;
People v. Mendoza (2017) 10 Cal.App.5th 327, review granted July 12, 2017, S241647;
People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, review granted May 17,

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2017, S241231; People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17,
2017, S241323.) Our Supreme Court has already granted review in these matters (except
Walker2 and Pineda) to address this issue and will ultimately provide a definitive answer
to the question. Like my colleagues, I see no need to expand on the reasoning of prior
published cases. I join Walker, Marquez, Mendoza, Lara, and Cervantes (and the dissent
in Pineda) in concluding Proposition 57 has no retroactive application postconviction, at
least in the absence of a reversal and retrial. I therefore disagree that the trial court is
required to determine if Pitcher would have been suitable for juvenile court treatment.
I concur in part and dissent in part.
_________________________
BRUINIERS, J.
2 A petition for Supreme Court review was filed on July 11, 2017.

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