Terry Bell v. Domingo Uribe, Jr.

Filing

Filed order and amended opinion (RICHARD C. TALLMAN, RICHARD R. CLIFTON and CONSUELO M. CALLAHAN). Amending Disposition Opinion REVERSED; VACATED; REMANDED. The opinion filed on September 5, 2013, is amended. The amended opinion is filed concurrently with this order. With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc filed in appeal number 11-56771. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and the petition for rehearing en banc in appeal number 11-56771 are DENIED. No further petitions for panel rehearing or petitions for rehearing en banc will be entertained. [8944400] [11-56768, 11-56771]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY LEE BELL,
Petitioner-Appellee,
v.

No. 11-56768
D.C. No.
5:08-cv-01913JST-SS

DOMINGO URIBE, JR., Warden,
Respondent-Appellant.

NATALIE DEMOLA,
Petitioner-Appellee,
v.
JAVIER CAVAZOS, Acting Warden,
Respondent-Appellant.

No. 11-56771
D.C. No.
5:10-cv-00014JST-SS
ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the Central District of California
Josephine Staton Tucker, District Judge, Presiding
Argued and Submitted
August 5, 2013—Pasadena, California
Filed September 5, 2013
Amended January 21, 2014

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BELL V. URIBE
Before: Richard C. Tallman, Richard R. Clifton,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tallman

SUMMARY*

Habeas Corpus
The panel amended an opinion filed on September 5,
2013, denied a petition for panel rehearing, denied a petition
for rehearing en banc on behalf of the full court, and ordered
that no further petitions for panel rehearing or rehearing en
banc will be entertained.
As in the original opinion, the panel reversed the district
court’s grant of a 28 U.S.C. § 2254 habeas corpus petition
with instructions to deny petitioners’ claims for relief and
consider their remaining unresolved claims, and retained
jurisdiction over future appeals.
Petitioners raised a Sixth Amendment challenge to the
trial court’s decision to excuse a juror for willful misconduct
when the juror violated the court’s instructions by conducting
independent research that she presented to her fellow jurors
during deliberations, and by asking them to rely on her
expertise and specialized knowledge as a mental health
expert. The panel first held that the presumption, that the
California Court of Appeal adjudicated the federal claim on
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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the merits despite not expressly addressing that claim, had not
been rebutted. See Johnson v. Williams, 133 S. Ct. 1088
(2013). The panel next held that the California Court of
Appeal decision upholding the juror’s removal for
misconduct was neither contrary to nor an unreasonable
application of clearly established federal law.
In the amended opinion, the panel clarified its holding
that the sentence did not violate the Eighth Amendment as
cruel and unusual as to petitioner DeMola, a juvenile
offender, because she was not sentenced to life without
possibility of parole pursuant to a mandatory sentencing
scheme that did not afford the sentencing judge to consider
the specific circumstances of the offender and the offense,
and because the record showed that the trial judge did make
an individualized sentencing determination under a scheme
that affords discretion and leniency. See Miller v. Alabama,
132 S. Ct. 2455 (2012); Cal. Penal Code § 190.5(b).

COUNSEL
Kevin Vienna (argued), Supervising Deputy Attorney
General, San Diego, California, for Respondents-Appellants
Domingo Uribe, Jr. and Javier Cavazos.
Thaddeus J. Culpepper (argued), Pasadena, California, for
Petitioner-Appellee Terry Lee Bell.
Mark R. Drozdowski (argued), Deputy Federal Public
Defender, Los Angeles, California, for Petitioner-Appellee
Natalie DeMola.

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ORDER

The opinion filed on September 5, 2013, is amended. The
amended opinion is filed concurrently with this order.
With these amendments, the panel has voted to deny the
petition for panel rehearing and the petition for rehearing en
banc filed in appeal number 11-56771.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc in appeal number 11-56771 are DENIED.
No further petitions for panel rehearing or petitions for
rehearing en banc will be entertained.

OPINION
TALLMAN, Circuit Judge:
The California Attorney General (“state”) appeals the
district court’s grant of habeas relief under 28 U.S.C. § 2254
to California state prisoners Terry Bell and Natalie DeMola
(“petitioners”). In granting relief, the district court concluded
that the petitioners’ Sixth Amendment rights were violated
when the trial court removed for willful misconduct, in
conformance with California Penal Code § 1089, the only
juror advocating for acquittal.

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The California Court of Appeal found that the juror was
properly removed because she engaged in misconduct by: (1)
offering her expert opinion on the petitioners’ mental health,
and (2) violating the court’s instructions by consulting a
dictionary in order to obtain a medical definition that she
presented to her fellow jurors during deliberations. The
district court relied on then controlling Ninth Circuit
precedent, since reversed by the Supreme Court, to conduct
a de novo review of the petitioners’ federal habeas claims.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,
and we reverse and vacate the district court’s order granting
Bell and DeMola habeas relief. In assessing the habeas
petitions filed by Bell and DeMola, the district court should
have applied the deferential standard of review prescribed by
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). We address the merits of the petitioners’ claims
for relief, based on the Sixth and Eighth Amendments and
discussed herein.1 We remand this case to the district court

1

Remand to the district court to reconsider these claims in the first
instance is unnecessary because there can be no additional factfinding by
that court. Federal habeas review “is limited to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). The parties have submitted, and
we have reviewed, supplemental briefs and argument addressing the
merits of these claims. Because the record is complete, we may resolve
these claims on appeal rather than remanding for reconsideration. See
Ybarra v. McDaniel, 656 F.3d 984, 992 n.3 (9th Cir. 2011).
After argument, counsel for DeMola—apparently sensing from our
questioning that we would not affirm the district court’s judgment in light
of the Supreme Court’s reversal in Johnson v. Williams, 133 S. Ct. 1088
(2013)—switched positions and tried to withdraw from appeal an Eighth
Amendment claim that he had briefed and argued. We will not permit
after argument a preemptive withdrawal of a claim that was fully raised,

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to deny these claims, and to consider the remaining
unresolved claims in the petitioners’ 28 U.S.C. § 2254 habeas
petitions.
I
On April 15, 2005, Bell and DeMola were convicted in
Riverside County Superior Court of first degree murder, in
violation of California Penal Code § 187, with special
circumstances. On April 10, 2001, when DeMola was sixteen
years old and Bell was seventeen, the pair, joined by a mutual
acquaintance, murdered DeMola’s mother. The jury
concluded that the murder was committed while lying in wait,
as defined under California Penal Code § 190.2(a)(15), and
was intentional and involved torture, as defined under
California Penal Code § 190.2(a)(18). On July 20, 2005, the
trial court sentenced Bell and DeMola to life in prison
without the possibility of parole.
Bell and DeMola contested the murder charge in a fourweek-long jury trial, which commenced on March 3, 2005.
At the close of evidence, the jury began several days of
deliberations, which were interrupted by accusations of juror
misconduct involving Juror No. 7.
On the fourth day of deliberations, Juror No. 12 informed
the court, outside of the presence of her fellow jurors, that
Juror No. 7 worked in the mental health field and had
concluded that Bell and DeMola were suicidal and suffered
from clinical depression. After the court admonished Juror
No. 12 not to discuss “specifically what the jury has been
briefed, and argued before our court. Withdrawal at this stage would
waste judicial time and resources already expended addressing this claim.

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deliberating,” Juror No. 12 stated that Juror No. 7 had
“ma[de] a medical decision . . . [that was] not part of the trial
. . . [a]nd she’s making this as something that we should all be
aware of, and it is swaying her inability, or ability, to make
the decision one way or the other.” The court heard
arguments from the prosecution and defense regarding the
propriety of dismissing Juror No. 7, but ultimately elected to
“not . . . take further action right now . . . [and] to wait to see
how it proceeds this morning.”
That afternoon, the court received a note indicating that
the jury was hung and could not reach a unanimous verdict.
In response to the note, and in light of the allegations of
misconduct, the court asked the jury foreman whether “Juror
No. 7 [was] portraying herself as an expert in the mental
health field and evaluating the evidence accordingly.” At that
time, the jury foreman answered in the negative and stated
that other jurors had prevented Juror No. 7 from offering her
mental health opinion. The court then instructed Juror No. 7
that “the deliberation process must be based upon the
evidence introduced in the case[;] [a] particular juror can’t
use his or her expertise in evaluating the evidence because
that individual never testified as an expert.”
The court concluded that Juror No. 7 was properly
deliberating and, after polling the jury, read a “dynamite”
charge2 instructing the jurors to continue deliberations. Prior
to doing so, the court informed counsel that:

2

A “dynamite” instruction, authorized under People v. Moore, 117 Cal.
Rptr. 2d 715 (Cal. Ct. App. 2002), is comparable to the Allen charge
sometimes given during deliberations in federal proceedings, described in
Allen v. United States, 164 U.S. 492 (1896).

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BELL V. URIBE
Excusing a holdout juror is a very serious
move that is disfavored by appellate courts,
and I would certainly much rather try this case
next Monday morning with a new jury panel
rather than having a case reversed in four or
five years. That’s my unsolicited opinion. So
I certainly wouldn’t excuse a holdout juror,
unless I was very satisfied that it was a clear
indication of juror misconduct, which may or
may not exist in this case.

Upon receiving the dynamite charge, three members of the
jury informed the court of their frustration with Juror No. 7,
one of them stating, “I feel with an alternate juror we could
come to a unanimous decision.” The court again declined to
dismiss Juror No. 7 and instructed the jurors to resume
deliberations.
Two days later, the jury submitted a note alleging that
Juror No. 7 was indeed functioning as an expert and not as a
deliberating member of the jury panel. The court convened
a hearing in response to the note. The court again asked the
jury foreman whether Juror No. 7 was “evaluating the
evidence as an expert.” In response, the foreman then stated
“based on what was done last night, I’m going to have to say
yes.” The foreman explained that Juror No. 7 had returned
home, compiled information from a dictionary and “from her
profession” and presented the information to the jury,
ultimately concluding that “one of the defendants” suffered
from clinical depression. No such evidence had been offered
at the trial.
When questioned by the court, Juror No. 7 admitted that
she shared the definition of the term “depression” with the

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jurors, as that term was defined in Webster’s Dictionary.
Juror No. 7 stated that “I just wanted the term that I could
relate to the people. Just tell them, this is depression, and
these are the things that happen with depression.”
Another juror stated that Juror No. 7 “brought in
materials. She had done research at home and brought in that
paperwork. And that’s what she used to make her
presentation.” Juror No. 9 confirmed that Juror No. 7 “was
. . . presenting herself as a mental health expert in the
presentation of her position.” Juror No. 4 noted that Juror
No. 7 “said that through her education, her experience, her
clinical training, she went through and she analyzed in this
manner and laid out what she thought was a reason in her
mind as to why she would reach a certain verdict.” One juror
explained that Juror No. 7 drew “a diagram in the jury room
with all this clinical information,” relying on information
contained in a notebook that she “brought in from home.”
Juror No. 1, a registered nurse, expressed doubt that the
definition conveyed was derived only from Webster’s
Dictionary, instead stating “it looks like something out of a
textbook.” The court reviewed the notes that Juror No. 7
admitted to compiling at home, and concluded that “it doesn’t
appear that any of this would necessarily come from a simple
dictionary.” The court copied the notes Juror No. 7 had made
and sealed them as a court exhibit for state appellate review.
After hearing arguments from counsel, the court noted
that it had “admonished this juror two days ago that she could
not act as an expert” and expressed disappointment that
thereafter the juror went “home, d[id] her own investigation,
reference[d] what she says is a dictionary[;] [s]everal of the
other jurors said that she also reviewed data that she had at
home.” The court concluded:

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BELL V. URIBE
[I]t is quite clear . . . that this juror has
violated the admonition and directive of this
Court after she was told not to do it. It was a
willful violation. It was willful misconduct.
Based upon what she did, based upon her
demeanor in court, and the way she answered
my questions, this Court is finding that there
is a demonstrable reality that this juror is
unable to perform her function as a juror and
follow the very clear directives of this Court
and that she did engage in willful misconduct.
And her presentation to the jury was a clear
indication that she was attempting to persuade
to this jury based upon her training and
experience and information that she had
collected outside of court. Pursuant to Penal
Code section 1089,3 the Court is now
excusing this juror.

An alternate juror was empaneled, and within hours, the jury
reached a unanimous verdict.

3

California Penal Code § 1089 provides, in relevant 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 his or her duty,
or if a juror requests a discharge and good cause
appears therefor, 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, and be subject to
the same rules and regulations as though the alternate
juror had been selected as one of the original jurors.

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II
Bell and DeMola unsuccessfully appealed their
convictions to the California Court of Appeal and the
California Supreme Court, arguing in part that the trial
court’s removal of Juror No. 7 denied the petitioners their
“Sixth Amendment right[s] to a fair and impartial jury, as
well as [their] right[s] to due process and [to] a fair trial as
guaranteed by the Fourteenth Amendment to the United
States Constitution.”
In a reasoned opinion, the California Court of Appeal
concluded that the removal was proper, noting that Juror
No. 7 committed misconduct by: (1) “violating [the trial
court’s] instruction” to “not do any independent research,
either on the internet or looking at legal books . . . or looking
at a dictionary[;]” and (2) “acting as an unsworn expert
witness,” finding that “[t]here was ample evidence that Juror
No. 7 was . . . asking the other jurors to rely on her expertise
and specialized knowledge.” The California Supreme Court
unanimously, and without comment or citation to authority,
affirmed the California Court of Appeal’s opinion.
Bell and DeMola then sought habeas relief in the United
States District Court for the Central District of California. On
June 20, 2011, a magistrate judge issued a report and
recommendation, concluding that Bell’s petition should be
dismissed with prejudice. Applying AEDPA deference, the
magistrate judge found that:
Juror No. 7’s disqualification under Penal
Code section 1089 was for good cause and did
not violate Petitioner’s Sixth Amendment
rights. In addition, the record reflects that

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BELL V. URIBE
there was no reasonable possibility that the
impetus for Juror No. 7’s dismissal stemmed
from her views regarding the merits of the
case. Cf. Williams v. Cavazos, __ F.3d __,
2011 WL 1945744 at *15 (9th Cir. May 23,
2011).

On August 8, 2011, the magistrate judge consolidated the
federal habeas proceedings initiated by Bell and DeMola and
issued a revised report and recommendation, this time
concluding that habeas relief was warranted. In vacating the
prior report, the magistrate judge explained that a recent
appellate decision, “United States v. Evanston, __ F.3d __,
2011 WL 2619277 (9th Cir. July 5, 2011), and its discussion
of Williams v. Cavazos, __ F.3d __, 2011 WL 1945744 (9th
Cir. May 23, 2011), have caused this Court to sua sponte
reconsider its June 20, 2011 recommendation.”
In light of Williams v. Cavazos, 646 F.3d 626 (9th Cir.
2011), the magistrate judge found that the California Court of
Appeal had failed to address the petitioners’ Sixth
Amendment arguments and instead had limited its analysis to
whether dismissal was appropriate under California Penal
Code § 1089. Accordingly, the magistrate judge concluded
that AEDPA deference did not apply since no state court had
adjudicated the merits of the petitioners’ constitutional
claims, and she proceeded to conduct a de novo review of the
disputed issues.
Applying the standard articulated in Williams, the
magistrate judge found that Juror No. 7’s discharge violated
the Sixth Amendment because the record evidence disclosed
a “reasonable possibility that the impetus for [the juror’s]

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dismissal stem[med] from the juror’s views on the merits of
the case.” 646 F.3d at 646. The magistrate judge noted that:
[I]t was undisputed that Juror No. 7 was the
lone holdout juror with a split of “11 to 1.” . . .
It was clear that the jurors’ animus toward
Juror No. 7 was based in large part on her
disagreement with their view of the
evidence. . . . [Therefore,] [e]ven assuming
that the trial court had cause to remove Juror
No. 7 because she “acted as an expert,” the
trial court “was not justified in acting upon
that cause because there was a ‘reasonable
possibility’ that the request for removal was
directly connected to [Juror No. 7’s] views on
the merits.” Williams, 2011 WL 1945744, at
*15.
After conducting an independent review of the record, the
magistrate judge recommended that the district court grant
the habeas petitions filed by Bell and DeMola. On September
24, 2011, the district court adopted the amended report and
recommendation and ordered the state to “either release Bell
and DeMola or retry them within 120 days of the date of this
Order.” The state immediately appealed the district court’s
ruling and obtained an order staying retrial pending appeal.
III
While this appeal was pending, the Supreme Court issued
a writ of certiorari and overturned our opinion in Williams,
concluding that AEDPA deference should have applied when
adjudicating Williams’ habeas petition. Johnson v. Williams,
133 S. Ct. 1088 (2013). The Supreme Court held in Williams

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that “[w]hen a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the
merits—but that presumption can in some limited
circumstances be rebutted.” Id. at 1096. The record before
us establishes that the challenge to the removal of Juror No. 7
under California Penal Code § 1089 was intertwined with a
Sixth Amendment due process challenge regarding the
petitioners’ right to a fair and impartial jury. As a result, we
hold that the presumption articulated in Williams has not been
rebutted and that the district court erred by finding that the
California Court of Appeal overlooked the petitioners’ Sixth
Amendment claims.
The parties were given the opportunity to file
supplemental briefs on this issue post-Williams and we
received and reviewed them before oral argument on this
appeal. We now can say with the benefit of Supreme Court
guidance that the California Court of Appeal necessarily
adjudicated the merits of the petitioners’ Sixth Amendment
arguments when it rejected their juror removal claims on
direct appeal. On appeal, Bell and DeMola presented
integrated claims challenging the removal of Juror No. 7,
which the district court determined were supported by both
state and federal law. These claims were delineated under a
single heading in Bell’s and DeMola’s habeas petitions,
supported by identical facts and without distinct analysis. As
a result, any Sixth Amendment claims raised by Bell and
DeMola on appeal were not separate and distinct from, but
instead were inextricably intertwined with, their California
Penal Code § 1089 claims.
Given the overlapping nature of the petitioners’ Sixth
Amendment and § 1089 claims, it is improbable that the state

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court simply neglected the federal issue and failed to
adjudicate the constitutional claim. See Harrington v.
Richter, 131 S. Ct. 770, 785 (2011). As the Court said in
Williams, “[r]egardless of whether [the petitioners’] § 1089
and Sixth Amendment claims [are] perfectly coextensive, the
fact that these claims are so similar makes it unlikely that the
California Court of Appeal decided one while overlooking the
other.” 133 S. Ct. at 1098.
In adjudicating the petitioners’ claims on appeal, and in
upholding Juror No. 7’s dismissal under California Penal
Code § 1089, the California Supreme Court was bound to
comply not only with California law but also with federal
constitutional standards, including the Sixth Amendment. In
People v. Cleveland, 25 Cal. 4th 466, 484–85 (2001), the
California Supreme Court prohibited trial courts from
dismissing a juror during deliberations solely because that
juror harbors doubts about the sufficiency of the
prosecution’s evidence—a decision which the Supreme Court
held had “federal constitutional dimensions.” Williams,
133 S. Ct. at 1098.
In discussing Cleveland, the Supreme Court noted that the
California Supreme Court would likely not have
“announc[ed] an interpretation of Cal. Penal Code Ann.
§ 1089 that it believed to be less protective than the Sixth
Amendment, as any such interpretation would provide no
guidance to state trial judges bound by both state and federal
law.” Id. Although, in the present case, the California Court
of Appeal did not expressly reference Cleveland in its
opinion, it was reviewing the actions of the trial court, which
undisputably referenced Cleveland prior to removing Juror
No. 7.

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In light of the conjoined nature of the petitioners’ state
and federal claims, the similar legal analysis underpinning
their resolution, and the Court of Appeal’s obligation to
dutifully comply both with state law and the federal
Constitution, we conclude that it is “exceedingly unlikely”
that the California Court of Appeal overlooked the
petitioners’ federal claims. Id. at 1099. The California Court
of Appeal’s opinion, finding that Juror No. 7 was properly
removed, adjudicated the petitioners’ federal claims on the
merits and is entitled to deference under 28 U.S.C. § 2254(d).
Without the benefit of the Supreme Court’s recent
guidance in this area, the district court erred in undertaking a
de novo review of the claims raised by Bell and DeMola in
federal habeas proceedings. Under the appropriate standard
of review, habeas relief should not have been granted absent
a showing that the California Court of Appeal’s decision was
contrary to or based on an unreasonable application of
Supreme Court precedent, or that it unreasonably interpreted
the facts presented in the state court proceeding. 28 U.S.C.
§ 2254(d). Bell and DeMola cannot satisfy this deferential
standard.
IV
A
The petitioners argue that the California Court of
Appeal’s decision, upholding the dismissal of Juror No. 7,
was contrary to and an unreasonable application of clearly
established federal law because the juror’s use of a dictionary
did not justify the extreme remedy of dismissal. The
petitioners’ argument fails for three reasons. First, the Court
of Appeal upheld Juror No. 7’s removal not because she had

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consulted a dictionary but because she violated the trial
court’s explicit instructions to “not do any independent
research [which includes] . . . looking at a dictionary.” The
court’s instruction concluded with “if you do that, you will be
in violation of your oath, and you will be excused as a juror
in this case.”
Second, the petitioners have not referenced any authority
to support their contention that the California Court of
Appeal’s opinion is contrary to or based on an unreasonable
application of clearly established federal law as announced by
the United States Supreme Court. See Renico v. Lett,
130 S. Ct. 1855, 1866 (2010) (a court of appeal’s decision
“does not constitute ‘clearly established federal law, as
determined by the Supreme Court,’ § 2254(d)(1), so any
failure to apply that decision cannot independently authorize
habeas relief under AEDPA”); Grotemeyer v. Hickman,
393 F.3d 871, 877 (9th Cir. 2004) (arguments based on state
law do not have “any relevance to us[;] [a] federal court of
appeals considering a petition for a writ of habeas corpus
does not review state court decisions pursuant to state law
like a state appellate court”).
Third, the petitioners rely on cases in which the juror’s
misconduct was only revealed in conjunction with a motion
for a new trial or in habeas proceedings. See, e.g., Fields v.
Brown, 503 F.3d 755, 783 (9th Cir. 2007) (en banc)
(concluding on habeas review that the juror’s use of a
dictionary, discovered after the verdict was rendered, was
harmless); Mendoza v. Runnels, 251 F. App’x 406, 408 (9th
Cir. 2007) (unpublished) (affirming a state court’s finding
that the juror’s use of a dictionary, discovered when filing a
motion for a new trial, was harmless); United States v. Steele,
785 F.2d 743, 745–49 (9th Cir. 1986) (concluding that the

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jurors’ use of dictionary, discovered post-verdict, was
harmless).
These cases are inapposite, as we are not asked to
consider here ex post facto whether the verdict rendered is
valid but whether the court properly removed a juror who
committed misconduct during deliberations.
As the
California Court of Appeal explained:
[W]hen a trial court learns during
deliberations of a jury-room problem which,
if unattended, might later require the granting
of a mistrial or new trial motion, the court
may and should intervene promptly to nip the
problem in the bud. The law is clear, for
example, that the court must investigate
reports of juror misconduct to determine
whether cause exists to replace an offending
juror with a substitute.
At this stage of the proceedings, the Court of Appeal properly
concluded that “[e]ven assuming [Juror No. 7’s] misconduct
had not been prejudicial yet, the trial court could reasonably
find that, if she remained on the jury, she was likely to
indulge in further misconduct.”
B
The petitioners also allege that the California Court of
Appeal’s conclusion that Juror No. 7 “committed misconduct
by acting as an unsworn expert witness” is not only contrary
to and an unreasonable application of clearly established
federal law, but is also based on an unreasonable
determination of the facts. The petitioners claim that

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“[j]urors are neither disqualified from service based on their
personal expertise nor barred from using such experience as
a means of interpreting the evidence in the record.” Bell and
DeMola note that “[d]epression is also a topic that ‘any
reasonable juror’ is likely already familiar with before
coming into the jury room . . . [and] [s]uch knowledge also
does not qualify as expert testimony of the kind that would
implicate the Sixth Amendment or require dismissal.”
The petitioners’ benign characterization of Juror No. 7’s
misconduct is contradicted by the record, which demonstrates
that the juror represented that she had particularized expertise
in the field of mental health, in which she was employed, and
that she relied upon external sources to present her expert
opinion to the jury. In evaluating the petitioners’ claims, the
California Court of Appeal determined that while “[j]urors’
views of the evidence . . . are necessarily informed by their
life experiences, including their education and professional
work[,] [a] juror . . . should not discuss an opinion explicitly
based on specialized information obtained from outside
sources.”
Juror No. 7 did not simply bring her personal experience
to bear in evaluating the evidence before her. Instead, she
returned home, compiled a definition from a dictionary,
gathered data “from her profession,” and offered the
information to the jury. In presenting her analysis, Juror
No. 7 instructed the jurors to rely on her expert opinion,
which was based on “her education, her experience, [and] her
clinical training,” and ultimately concluded that “one of the
defendants” suffered from depression. As the Court of
Appeal held, “[t]here was ample evidence that Juror No. 7
was not just sharing her life experiences; she was asking the
other jurors to rely on her expertise and specialized

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knowledge.” See Grotemeyer, 393 F.3d at 878 (it is “well
established law that a juror may not bring into the jury room
evidence developed outside the witness stand”).
C
The petitioners have failed to identify any directly
controlling Supreme Court precedent that contravenes the
California Court of Appeal’s opinion that Juror No. 7’s
removal neither violated California Penal Code § 1089 nor
the Sixth Amendment. In the absence of established
precedent, the California Court of Appeal’s determination
that the trial court properly discharged Juror No. 7 for cause
was neither contrary to, nor an unreasonable application of,
clearly established federal law. Additionally, the California
Court of Appeal did not unreasonably interpret the facts
presented in the state court proceeding when issuing its
decision.
V
The petitioners further contend that they are entitled to
habeas relief because the trial court’s inquiry into juror
misconduct impermissibly intruded upon the sanctity of jury
deliberations. Bell and DeMola argue that the Supreme Court
has held that it is improper for a trial judge to inquire as to the
numerical division of a deadlocked jury. In support of their
claim, the petitioners primarily rely on Brasfield v. United
States, 272 U.S. 448, 449–50 (1926), which bans the practice
of polling juries in federal prosecutions, and Burton v. United

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States, 196 U.S. 283, 307–08 (1905), which stated in dicta
that federal trial judges should not inquire into jury balloting.4
Both of these cases are distinguishable. The Court did not
hold in either Brasfield or Burton that the trial court’s
conduct violated the Sixth Amendment. Rather, in Brasfield,
the Court prohibited jury polling under its inherent
supervisory authority over the federal judiciary and not
because of any particular constitutional imperative. See
Lowenfield v. Phelps, 484 U.S. 231, 240 n.3 (1988) (“Our
decision in Brasfield makes no mention of the Due Process
Clause or any other constitutional provision. The Federal
Courts of Appeals have uniformly rejected the notion that
Brasfield’s per se reversal approach must be followed when
reviewing state proceedings on habeas corpus.”).
Additionally, as we have held, the admonition against jury
balloting in Burton was dicta and, given its relationship to
Brasfield, was “only supervisory in nature.” Locks v.
Sumner, 703 F.2d 403, 406 (9th Cir. 1983).
Under Supreme Court precedent, the remedy for
allegations of juror misconduct is a prompt hearing in which
the trial court determines the circumstances of what
transpired, the impact on the jurors, and whether or not the
misconduct was prejudicial. Smith v. Phillips, 455 U.S. 209,
216–17 (1982); Dyer v. Calderon, 151 F.3d 970, 974–75 (9th
Cir. 1988) (en banc) (upon being alerted to potential juror
4

The remaining cases cited by the petitioners have limited relevance and
we do not read them as supporting their argument that the California Court
of Appeal’s decision was contrary to, or unreasonably applied, clearly
established federal law. See United States v. Martin Linen Supply Co.,
430 U.S. 564, 575 (1977); Remmer v. United States, 350 U.S. 377, 382
(1956); Quercia v. United States, 289 U.S. 466, 469–70 (1933); Clark v.
United States, 289 U.S. 1 (1933).

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misconduct, the trial court “must undertake an investigation
of the relevant facts and circumstances” and the investigation
must “be reasonably calculated to resolve the doubts raised
about the juror’s impartiality”).
The trial court conducted an evidentiary hearing to protect
the jury from improper outside influence, inquired into the
alleged misconduct, and undertook efforts to ensure that the
jury’s internal deliberations were not revealed. The record of
the evidentiary hearing demonstrates that while the trial
court’s inquiry into Juror No. 7’s conduct during
deliberations was appropriately thorough, its investigation
into juror misconduct was sensitive to these concerns and was
not impermissibly intrusive. Indeed, on multiple occasions,
the trial court instructed jurors not to disclose the substance
of the conversations occurring during deliberations. Under
these circumstances, the California Court of Appeal’s
approval of the juror removal and affirmance of the
petitioners’ convictions was not contrary to, nor an
unreasonable application of, clearly established federal law.
Accordingly, the petitioners are not entitled to habeas relief
on this ground.
VI
We have consistently held that “the California
substitution procedure” outlined in California Penal Code
§ 1089 “preserve[s] the ‘essential feature’ of the jury required
by the Sixth and Fourteenth Amendments.” Miller v.
Stagner, 757 F.2d 988, 995 (9th Cir. 1985). In so holding, we
have confirmed that California Penal Code § 1089 is not
deficient in terms of protecting a defendant’s Sixth
Amendment right to an impartial jury, even when § 1089 is
invoked to remove holdout jurors who represent the lone vote

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for acquittal. Perez v. Marshall, 119 F.3d 1422, 1426 (9th
Cir. 1997).
In Perez, we held that “[t]he fact that the trial judge knew
that [the removed individual] was the sole juror holding out
for an acquittal when he dismissed her does not invalidate his
decision to excuse her from jury service.” Id. at 1427.
Because good cause was established and “[n]othing in the
record indicates that the trial court’s discretion was clouded
by the desire to have a unanimous guilty verdict,” we
concluded that the removal of a juror did not violate the
petitioner’s Sixth Amendment rights. Id. (alteration in
original). As we noted, “the record show[ed] that the district
court was forced to act, not because of [her] status as a
holdout juror, but because of [her] . . . inability to continue
performing the essential function of a juror—deliberation.”
Id.
The scenario presented in Perez exists in this case. The
record reflects that the state trial judge took great pains to
preserve the originally empaneled jury and declined to
remove Juror No. 7 on four separate occasions in response to
juror notes and complaints to the court. For example, the
court elected not to remove Juror No. 7 after Juror No. 12
alleged that she had offered a “clinical . . . decision of what
the defendants may have been suffering from.” Additionally,
the court did not act after the jury foreman claimed that Juror
No. 7 had attempted to offer her expert medical opinion.
Lastly, Juror No. 7 was not dismissed after several members
of the jury complained that she was not properly deliberating.
The court only removed Juror No. 7 after she consulted a
dictionary, or other sources at home, in violation of its

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express instructions, and attempted to function as an unsworn
expert on the petitioners’ mental health.5
The Sixth Amendment guarantees a criminal defendant
the right to a “fair trial by a panel of impartial, indifferent
jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (internal
quotation marks and citations omitted).
The Sixth
Amendment does not entitle a defendant to require retention
of a biased juror. Instead, a defendant is only entitled to a
jury composed of “jurors who will conscientiously apply the

5

The district court’s conclusion that “[t]here is a reasonable possibility
that the removal of Juror No. 7 stemmed from her view on the evidence”
is not a factual finding but rather is a legal conclusion derived from
language of our Williams v. Cavazos opinion. The now discredited
standard from Williams had held that “the critical Sixth Amendment
questio[n] [is] whether . . . it can be said that there is no reasonable
possibility that the juror’s discharge stems from his views of the merits.”
646 F.3d at 644.
Even if the district court’s conclusion could be characterized as a
factual finding, the court’s “account of the evidence is [im]plausible in
light of the record viewed in its entirety.” McClure v. Thompson,
323 F.3d 1233, 1240 (9th Cir. 2003) (internal quotation marks omitted).
The trial court’s four prior decisions not to remove the juror in question
demonstrated not that it was inclined to remove Juror No. 7 in an effort to
obtain a unanimous verdict, but that it was unwilling to remove the juror
until she explicitly violated court orders and attempted to serve as an
unsworn expert witness. The court’s statements support this conclusion,
informing counsel that “[e]xcusing a holdout juror is a very serious move
that is disfavored by appellate courts . . . [s]o I certainly wouldn’t excuse
a holdout juror, unless I was very satisfied that it was a clear indication of
juror misconduct, which may or may not exist in this case.”
As a result, the record reflects that there was no reasonable possibility
that the impetus for Juror No. 7’s dismissal stemmed from her assessment
of the case’s merits, and any conclusion by the district court to the
contrary would be clearly erroneous.

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law and find the facts,” Lockhart v. McCree, 476 U.S. 162,
178 (1986), and that is “capable and willing to decide the case
solely on the evidence before it,” McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (internal
quotation marks omitted). In protecting this interest, the
California Court of Appeal correctly determined that removal
of Juror No. 7 for cause neither violated California Penal
Code § 1089 nor the Sixth Amendment.
VII
Finally, DeMola contends that the sentence imposed, life
in prison without the possibility of parole, violates the Eighth
Amendment. She argues that, as a juvenile offender, the
court was prohibited from imposing such a lengthy sentence.
DeMola relies on the Supreme Court’s recent decision in
Miller v. Alabama, 132 S. Ct. 2455 (2012), to support her
argument.
In Miller, the Court held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison
without the possibility of parole for juvenile offenders.” Id.
at 2469. The Court explained that “[m]andatory life without
[the possibility of] parole for a juvenile precludes
consideration” of the defendant’s “chronological age and its
hallmark features,” the defendant’s “family and home
environment,” the “circumstances of the [underlying]
homicide offense,” the fact that the offender “might have
been charged and convicted of a lesser offense if not for
incompetencies associated with youth,” and “the possibility
of rehabilitation.” Id. at 2468. The Court stated that the
Eighth Amendment requires “a judge or jury . . . to consider
[such] mitigating circumstances before imposing the harshest
penalty possible for juveniles.” Id. at 2475.

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Even assuming, without deciding, that Miller applies to
the present case, DeMola was not sentenced to life without
the possibility of parole pursuant to a mandatory sentencing
scheme that did not afford the sentencing judge discretion to
consider the specific circumstances of the offender and the
offense.6 In fact, as is evident from the transcript of the
sentencing hearing, the trial judge did make an individualized
sentencing determination, just not one favorable to DeMola.
The record shows that the judge viewed “DeMola []as the
kingpin in organizing this [well-organized and well-executed]
murder.” Just before imposing DeMola’s sentence, the judge
stated:
As far as Miss DeMola’s participation in this
case, it is shocking, this crime is heinous, it is
an unthinkable crime demonstrating a cold,
heartless, and uncivilized attack on her
mother. It is clear to the Court that the
evidence is substantial and overwhelming
with respect to Miss DeMola’s guilt in this
case. And but for her guilt—but for her
hatred of her mother, Mr. Bell and Mr. Long
would not be here.
The judge also stated on the record that he had reviewed and
considered the report on DeMola prepared by the Probation
Department, which contained mitigating evidence related to

6

It is not clear whether Miller may be applied retroactively on collateral
review under Teague v. Lane, 489 U.S. 288 (1989). See In re Morgan,
713 F.3d 1365, 1367 (11th Cir. 2013). According to the state, DeMola’s
claim is also procedurally barred. We need not resolve these questions
because the California sentencing statute is not a mandatory one subject
to the rule announced in Miller.

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DeMola’s education, health, substance use history, and lack
of a prior criminal record. But ultimately the judge
concluded that the impact on the victim’s family, as
illustrated by the fact that several of DeMola’s relatives were
in therapy and two relatives asked the court to impose the
maximum sentence allowed by law, as well as the facts of the
crime, including the special circumstances found by the jury
of lying in wait and inflicting torture on the victim, warranted
a sentence of life in prison without the possibility of parole.
This individualized assessment of DeMola and her
offense was performed under California Penal Code
§ 190.5(b), which states:
The penalty for a defendant found guilty of
murder in the first degree, in any case in
which one or more special circumstances
enumerated in Section 190.2 or 190.25 has
been found to be true under Section 190.4,
who was 16 years of age or older and under
the age of 18 years at the time of the
commission of the crime, shall be
confinement in the state prison for life without
the possibility of parole or, at the discretion of
the court, 25 years to life.
(emphasis added). Even though the face of this statute
affords a sentencing judge discretion to impose a sentence of
25 years to life imprisonment in recognition that some
youthful offenders might warrant more lenient treatment, the
court concluded that such mercy was not warranted in the
present case. Because the sentencing judge did consider both
mitigating and aggravating factors under a sentencing scheme
that affords discretion and leniency, there is no violation of

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Miller. As a result, assuming that DeMola’s claim is not
procedurally defaulted and that Miller applies retroactively (a
question we do not decide), DeMola still cannot establish an
Eighth Amendment violation. Her claim for relief fails on
this ground.
VIII
The district court’s order granting Bell and DeMola
habeas relief is REVERSED and VACATED. We
REMAND this case to the district court with directions to
DENY the petitioners’ claims for relief, based on the Sixth
and Eighth Amendments and discussed herein, and to
consider the remaining unresolved claims in the petitioners’
28 U.S.C. § 2254 habeas petitions. The panel shall retain
jurisdiction over any future appeals.