Cal. Pen. Code § 1089 provides in part that if at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, the court may order him to be discharged and draw the name of an alternate. The taking of sworn testimony under the usual rules of evidence is not necessary where the facts upon which action is taken are uncontroverted.
Defendant was charged with the kidnaping and murder of a girl who was taken out of Alameda County and buried near defendant's cabin in another county. Defendant's motion to set aside the indictment was denied, and the court denied his petition for a writ of prohibition. The trial court discharged a juror based on the fact that he worked in the same office as defendant's brother. The jury convicted defendant, and the trial court denied his motion for a new trial. On appeal, the court affirmed the judgment and the order denying a new trial.
Did the trial court err in discharging a juror because of his proximity to defendant's brother in the office where they worked?
The trial court did not abuse its discretion in discharging before trial, pursuant to Cal. Pen. Code § 1089, a juror who worked with defendant's brother. There was no showing that defendant was prejudiced., and he was not entitled to be tried by a jury composed of any particular individuals. Also, the questioning of that juror in chambers outside defendant's presence did not violate defendant's right to a fair trial.