Guzman

Defendant Robert Guzman and codefendant Monkhouse were each charged with one count of possession of heroin for sale (Health & Saf. Code, § 11351, count I) and one count of possession of heroin (§ 11350, count II). A jury acquitted Monkhouse on both counts and convicted defendant on count II. The trial court declared a mistrial and ordered defendant discharged as to count I. Defendant’s motion for a new trial was denied. He was sentenced to prison and then placed on probation, on condition that he spend four days in jail and receive narcotics rehabilitation treatment from the Veterans’ Administration for one year.

Facts

The only issue on appeal relates to the misconduct of one of the jurors during deliberations. For that reason neither side has found it necessary to summarize the evidence adduced at the trial, which covered about 550 pages of reporter’s transcript. We gather, however, from the very brief preliminary hearing transcript, that the basic theory of the prosecution was that defendant, assisted by Monkhouse, was selling bags of heroin outside a Methadone center. As police officers were about to arrest both men, defendant threw away a bag containing six balloons…

Concurring and Dissenting. — I concur with that portion of the majority opinion that holds that a juror discharged for misconduct can be replaced by an alternate juror under the circumstances present in this case. However, if a juror’s misconduct is such that it will prevent proper determination of the issues by the remaining jurors after he is removed, the court should not appoint an alternate. The damage has been done and a mistrial should immediately be declared. This is not such a case.

The trial court questioned the involved jurors and obviously concluded that Updyke’s misconduct would not in any way affect the future decisions of the jury once he was replaced by an alternate. Any “presumption of prejudice” by the misconduct referred to by the *562 majority was properly overcome. This determination is, of course, a factual question for the trial court and should not be reversed by us unless there is no evidence to support it. In my view, there was ample evidence to support a finding whether specific or implied that the jurors could conscientiously continue their deliberations; therefore, I dissent with the majority opinion that a mistrial should have been declared.

After…

Defendant Robert Guzman and codefendant Monkhouse were each charged with one count of possession of heroin for sale (Health & Saf. Code, § 11351, count I) and one count of possession of heroin (§ 11350, count II). A jury acquitted Monkhouse on both counts and convicted defendant on count II. The trial court declared a mistrial and ordered defendant discharged as to count I. Defendant's motion for a new trial was denied. He was sentenced to prison and then placed on probation, on condition that he spend four days in jail and receive narcotics rehabilitation treatment from the Veterans' Administration for one year.

The only issue on appeal relates to the misconduct of one of the jurors during deliberations. For that reason neither side has found it necessary to summarize the evidence adduced at the trial, which covered about 550 pages of reporter's transcript. We gather, however, from the very brief preliminary hearing transcript, that the basic theory of the prosecution was that defendant, assisted by Monkhouse, was selling bags of heroin outside a Methadone center. As police officers were about to arrest both men, defendant threw away a bag containing six…