What is the test for dismissing a juror who refuses to deliberate?

People v. Cleveland, supra, is the leading California case concerning the discharge of a juror who refuses to deliberate. The court defined refusal to deliberate as "a juror's unwillingness to engage in the deliberative process; that is, he or she will not

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participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. 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." (People v. Cleveland, supra, 25 Cal.4th at p. 485.)

The court also recognized the possibility that the impetus for a juror's dismissal might stem from that juror's views on the merits of the prosecution's case. The court stated that it agreed with federal circuit court opinions holding that "a court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecution's evidence." (People v. Cleveland, supra, 25 Cal.4th at p. 483.)² Nevertheless, the court rejected the federal courts' position that a trial court may not dismiss a juror if there is a "reasonable possibility" that the juror's views on the merits of the case provided the impetus for the removal. (Ibid.) "Rather," the court stated, "we adhere to established California law authorizing a trial court, if put on notice that a juror is not participating in deliberations, to conduct 'whatever inquiry is reasonably necessary to determine' whether [grounds to discharge] exist . . . and to discharge the juror if it appears as a 'demonstrable reality' that the juror is unable or unwilling to deliberate." (Id. at p. 484.)