Section 1089 Juror Removal Requires Demonstrable Reality of Bias – People v. McGhee

Introduction

People v. McGhee (2025) 13 Cal.5th xxx clarifies the limits on a trial court’s power under Penal Code section 1089 to remove a juror during deliberations. In a capital case arising from five gang-related shootings, appellant Timothy Joseph McGhee was convicted of three counts of first-degree murder and four counts of attempted murder. A penalty phase deadlocked and then returned a death verdict on retrial. On automatic appeal, the Supreme Court of California held that the trial court had erroneously discharged a deliberating juror for an alleged “failure to deliberate” and “anti-police bias” without demonstrating either ground to be a “demonstrable reality.” The court reversed the convictions and sentence and remanded for further proceedings.

Summary of the Judgment

Justice Liu, writing for a unanimous court, found that during the guilt phase the trial court had received a note from two jurors complaining that “Juror No. 5” was biased against police testimony and unwilling to deliberate. Over defense objection and without first exhausting less intrusive measures, the court conducted a full-scale inquiry by questioning each juror, then discharged Juror No. 5 under section 1089. The Supreme Court concluded on de novo review that neither a refusal to deliberate nor actionable anti-police bias had been shown as a “demonstrable reality.” Because mere disagreement over witness credibility falls short of misconduct, the court held, the juror’s removal was an abuse of discretion requiring reversal and remand.

Analysis

Precedents Cited

People v. Armstrong (2016) 1 Cal.5th 432 – confirmed that removal for failure to deliberate must show an actual refusal, not mere flawed reasoning.
People v. Barnwell (2007) 41 Cal.4th 1038 – held that bias removal requires a “demonstrable reality” of bias, not juror opinions alone.
People v. Cleveland (2001) 25 Cal.4th 466 – emphasized limited scope of inquiry into deliberations and defined “refusal to deliberate.”
People v. Allen & Johnson (2011) 53 Cal.4th 60 – cautioned that removing a deliberating juror must be done with great care to protect the unanimity safeguard.
People v. Lomax (2010) 49 Cal.4th 530 – upheld removal where the juror refused to participate or communicate reasons for views.
People v. Diaz (2002) 95 Cal.App.4th 695 – approved removal of a juror who refused to deliberate due to intimidation and personal distress.

Legal Reasoning

The court’s analysis turned on the standard for discharging a juror mid-deliberation under section 1089: the juror must be “unable to perform his or her duty” due to either (1) an actual refusal to deliberate or (2) actual bias, which must appear as a “demonstrable reality” in the record. This standard is reviewed more stringently than ordinary abuse of discretion.

Failure to deliberate: A juror who will not engage in discussion, refuses to consider other viewpoints, or isolates himself may be removed. Here, twelve jurors agreed Juror No. 5 had strong views, but most testified he actively participated and gave reasons for distrusting particular prosecution witnesses. His refusal to change his mind did not amount to a refusal to deliberate.

Anti-police bias: Section 1089 also authorizes removal for bias against law enforcement. Yet bias must derive from views untethered to record evidence. Juror No. 5’s skepticism of witnesses with felony records, alleged police coaching, or post-shooting delays was grounded in evidence and permissible jury instruction factors (CALJIC 2.20, 2.23). Disagreement over inferences does not prove prejudgment or inability to decide impartially.

Because the record did not manifestly support either ground, the Supreme Court held the juror’s discharge was unjustified.

Impact

People v. McGhee reinforces the protection of jury unanimity and the confidentiality of deliberations. Trial courts must:

Use the least intrusive measures (re-instruction, limited inquiry) when faced with juror complaints.
Remove a juror mid-deliberation only upon objective evidence showing refusal to deliberate or demonstrable bias.
Base findings on the court’s own observations, not solely on other jurors’ opinions.

Future cases will require a careful record-based demonstration of actual misconduct before a seated juror may be excused during deliberations.

Complex Concepts Simplified

Section 1089: Allows removal of a juror unable to perform duties due to bias or refusal to deliberate.
Refusal to deliberate: Active disengagement—refusing to discuss, refusing to consider evidence.
Actual bias: A fixed opinion not based on trial evidence, preventing impartial judgment.
Demonstrable reality: An appellate standard demanding clear, objective proof that the trial court relied upon.
CALJIC 2.20 & 2.23: Jury instructions listing permissible factors (prior convictions, demeanor, promises, immunity) for assessing witness credibility.

Conclusion

People v. McGhee establishes that juror removal under section 1089 during deliberations demands more than mere juror disagreement or frustration. A court must show, to a demonstrable reality, either that the juror is refusing to deliberate or harbors bias disconnected from trial evidence. This decision safeguards the integrity of jury verdicts and underscores the high threshold for intervening in the deliberative process.