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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alvin Leon COLLINS, Defendant and Appellant.

Cr. 8115.

Decided: February 18, 1976

Appellate Defenders, Inc., by Stephen J. Perrello, Jr., Staff Atty., and Timothy M. Connor, San Diego, for defendant and appellant. Evelle J. Younger, Atty. Gen., by A. Wells Petersen and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

Alvin Leon Collins appeals a judgment, following a jury trial, convicting him of three counts of first degree robbery (Pen.Code § 211).

On the third day of trial, the trial court instructed the jury as to the law applicable to the case. At 3:12 p. m. the jury began its deliberations. Not having reached a verdict at 4:30 p. m., the jury was excused until 10 a. m. the following morning.

When court reconvened the following morning, the trial court received the following note from a juror:

‘Judge Lopardo: I am the juror in number two position now deliberating the case of People versus Collins. I want to be excused from this deliberation on the grounds that I find myself now unable to follow the Court's instructions concerning deliberation. Signed Mary I. Redman.’

In a hearing out of the presence of the other jurors, and before seeking an explanation of the note, the court prefaced its inquiry of Redman with a cautionary instruction:

‘THE COURT: Now, I'm going to ask you some questions, and in answering the questions please make it a point not to tell me how you voted in the jury room; do not tell me how other people voted in the jury room; do not tell me how the vote now stands. I don't even want you to tell me if there has been a vote taken.’

Adhering to the court's instructions, Redman said in effect she was guided by her emotions rather than her intellect, and thus was unable to decide the case on the evidence and the law. Redman further stated she did not think she was able to separate her emotional feelings in an evaluation of the evidence. Lastly, she pointed out she had been emotionally upset during the trial, including the time spent in deliberation with the other jurors, and her decision was not the result of coercion or anything occurring during the jury's deliberation.

The trial court concluded good cause had been demonstrated, and over Collins' objection, discharged Redman, substituting an alternate juror in her place. The court denied Collins' motion for a mistrial. Several hours, later, the jury returned guilty verdicts on all counts.

Collins contends no factual basis for a finding of good cause exists as there was no showing why, or what caused Redman's ‘emotional’ involvement. He argues Redman was discharged for reasons consistent with the normal process of deliberation: ‘weighing the evidence’ and ‘taking sides.’

While a trial court has at most a limited discretion to discharge a juror (People v. Compton, 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 793; People v. Hamilton, 60 Cal.2d 105, 124–127, 32 Cal.Rptr. 4, 383 P.2d 412), this court has upheld the discharge of a juror in mid-trial where the juror said he could not be fair and impartial, and he could not vote for a guilty verdict even if the evidence indicated guilt (People v. Miller, 245 Cal.App.2d 112, 153–154, 53 Cal.Rptr. 720). In essence the juror there said, in the same conclusory form as here, he was unable to follow the instructions of the court designed to ensure a fair trial. That Redman was not asked to give the factual basis or reason for her emotional involvement, is not the important point. It can really make very little difference whether the trial court knew the reasons for Redman's inability to follow the court's instructions; the fact is, in her mind, Redman felt she did not have the ability to evaluate the evidence objectively. As in this court's decision in People v. Miller, supra, 245 Cal.App.2d 112, 153–154, 53 Cal.Rptr. 720, the latter fact constitutes good cause to grant Redman's request to be discharged from the jury (Pen.Code §§ 1123, 1089). Since Penal Code section 1089 authorizes substitution of an alternate juror for a sitting juror ‘at any time, whether before or after the final submission of the case . . .,’ the trial court's actions were not improper (Pen.Code § 1089, emphasis added).

Next, Collins attacks the constitutionality of that part of Penal Code section 1089 which authorizes an alternate juror's substitution for a sitting juror once deliberations have begun. However, this aspect of the statute has been upheld as constitutional (People v. Lanigan, 22 Cal.2d 569, 577–578, 140 P.2d 24; People v. Love, 21 Cal.App.2d 623, 628, 70 P.2d 202; see People v. Peete, 54 Cal.App. 333, 202 P. 51).

The remaining contention involving double jeopardy is contingent upon a finding that Redman's discharge was improper. Thus, that contention need not be reached.

Judgment affirmed.



BY THE COURT* FN* Before Brown, P. J., Ault, J. and Cologne, J.