Bowers

At trial in this case, the court discharged a juror for failure to deliberate, even though the juror listened to all of the evidence, participated to some extent in the discussions concerning the evidence in the jury room, and remained willing and able to vote concerning the verdict. We conclude the trial court abused its discretion by discharging this juror and therefore reverse.

Factual and Procedural Background

A jury convicted defendant Reginald Bowers of one count of penetration with a foreign object of a person under 16 years of age and three counts of *725 oral copulation with a person under 16 years of age. It also found true allegations defendant served three prior prison terms. Defendant was sentenced to 13 years in prison.

The facts of the underlying crimes are not relevant to this court’s determination whether Juror No. 4 was properly discharged. Therefore, we will limit our discussion to the facts concerning the trial court’s supervision of the jury.

Jury deliberations began on Thursday, April 10, 1997. The next day the jury requested a readback of the testimony of the victim, which was held the following Monday. On April 15, the jury was released for the…

I respectfully dissent. Although a challenged juror’s inability to perform his or her function must appear as a demonstrable reality to justify dismissal under Penal Code section 1089 (People v. Feagin (1995) 34 Cal.App.4th 1427 [ 40 Cal.Rptr.2d 918 ]), this limitation does not alter the fundamental principles of appellate review. The trial court is best able to observe the appearance and demeanor of the jurors in order to decide whether there is good cause for discharge. (People v. Beeler (1995) 9 Cal.4th 953, 989 [ 39 Cal.Rptr.2d 607 , 891 P.2d 153 ].) Thus, “[t]he determination of ‘good cause’ rests in the sound discretion of the court [citations], and the court’s finding thereof will be upheld if substantial evidence supports it [citation].” {People v. Johnson (1993) 6 Cal.4th 1, 21 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ].) Having carefully reviewed the record, I cannot conclude the court abused its discretion in deciding there was good cause to discharge Juror No. 4 in the circumstances of this case.

The court questioned Juror No. 4 about the note it received which read: “One juror has stated[,] T heard everything in the other room. I knew then this did not happen. I am not…