People v. Warren

Opinion

ELKINGTON, J.

Defendant Warren was convicted by a jury’s verdict of robbery in the course which he used a deadly weapon.

On his appeal from the judgment which was thereupon entered tie contends only that: “It was reversible error for the court to substitute Juror #10.”

Following the trial jury’s impanelment, the superior court directed the calling of two alternate jurors. Such alternate jurors were thereafter examined and unchallenged by the parties, and sworn by the courts Thereafter the cause was tried and submitted to the jury for their verdict. Following such submission, juror number 10, Ms. Dowd, somehow sought an audience with the court, which, with court and counsel, she obtained.

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Ms. Dowd declared that she had been “intimidated” by the other jurors, that she was in disagreement with them, that she felt she was going to “break under it,” that “I feel so intimidated now that I think I would vote the way the group wants to vote even though I firmly believe I shouldn’t,” and that “at this stage I’m afraid that I will give in and maybe I won’t.” Asked by the court if she could comply with the following instruction— “You should not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors or any of them favor such a decision”—Ms. Dowd replied, “I can’t” and “I would say, No.”

Ms. Dowd then left the trial court’s chambers. There was no indication as to how she wished to vote, although the court and counsel speculated as to that matter.

Thereafter the trial court excused Ms. Dowd, and ordered her replacement with an alternate juror. The newly constituted jury were then directed to

commence their deliberations anew.

Initially we observe that defendant Warren makes no contention that he had been exposed to double jeopardy, nor that he had unsuccessfully moved for a mistrial.

Apposite, we think, are Penal Code sections 1089 and 1123.