People v. Collins

• Decision Date: 06 August 1976
• Docket Number: Cr. 19365
• Citation: 552 P.2d 742,131 Cal.Rptr. 782,17 Cal.3d 687
• Court: California Supreme Court
• Parties: , 552 P.2d 742 The PEOPLE, Plaintiff and Respondent, v. Alvin Leon COLLINS, Defendant and Appellant.

Page 782

131 Cal.Rptr. 782

17 Cal.3d 687, 552 P.2d 742

The PEOPLE, Plaintiff and Respondent, v. Alvin Leon COLLINS, Defendant and Appellant.

Cr. 19365.

Supreme Court of California.

Aug. 6, 1976.

Rehearing Denied Sept. 8, 1976.

Timothy M. Connor, San Diego, under appointment by the Supreme Court, and Stephen J. Perrello, Jr., San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Alvin Leon Collins was convicted by a jury of three counts of first degree robbery. (Pen.Code, § 211.) After the jury had begun its deliberations an alternate juror was substituted for one of the original jurors. Defendant appeals from the judgment of conviction contending that the substitution violated his constitutional right to trial by jury; that the trial court erred in discharging the original juror merely because she claimed she was unable to perform her duty; and that the substitution without apparent legal necessity or his consent placed him twice in jeopardy. We conclude that the substitution did not meet state constitutional standards but that defendant is nonetheless entitled to no relief.

The cause was submitted to the jury at 3:12 p.m. on the third day of trial. No verdict has been reached by 4:30 p.m. and the jury was excused until the following morning. At that time the court stated that it had received a note from one of the jurors and ordered the removal of the remaining eleven jurors, after admonishing them not to discuss the matter. The court then read the following note in the presence of the juror who had written the same, defendant and both counsel: '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.'

The court questioned the juror after first warning her not to reveal how she or anyone else voted in the jury room or even if a vote had been taken. She was expressly advised not to give any indication of her view of the guilt or innocence of defendant. She explained that she felt more emotionally than intellectually involved and that she thought she would not be able to make a decision based on the evidence or the law. The juror thought it might help her to read the jury instructions. The court would not allow her to do so but did remind her of her general duties as a juror.

The juror asserted that her inability to follow the evidence and the law was in no way attributable to the personality of any other juror and was not the result of coercion, duress or force applied by any other person. She stated that her inability to make a decision based on the law and the evidence was not a result of her experiences during the deliberations but rather a result of her inability to cope with the experience of being a juror. She added that her problem developed before deliberations began.

The court felt that an adequate reason had been shown to excuse the juror and that good cause had been shown for dismissing her and substituting an alternate juror. The substitution was made over the objection of defendant who thereafter unsuccessfully moved for a mistrial. The jury was not further instructed following the substitution and the guilty verdicts were returned a few hours later.

The principal question before us is whether the substitution of an alternate for an original juror is constitutionally permissible after deliberations have begun. As hereinafter explained we conclude that such substitution is permissible when good cause has been shown and the jury has been instructed to begin deliberations anew.

Penal Code section 1089 now authorizes upon a showing of good cause the substitution of an alternate juror before or after final submission of a case to the jury. ¹ Prior to 1933 section 1089 provided for substitution only before final submission to the jury. There is no doubt that such a substitution does not offend constitutional proscriptions. (See People v. Peete (1921) 54 Cal.App. 333, 362--367, 202 P. 51.)

We have considered the constitutionality of the substitution of an alternate juror after final submission of a case only once since the 1933 amendment of section 1089. (People v. Lanigan (1943) 22 Cal.2d 569, 578, 140 P.2d 24.) However, we did not undertake in Lanigan an analysis of the constitutionality of the amendment. Instead we relied on People v. Von Badenthal (1935) 8 Cal.App.2d 404, 48 P.2d 82 and People v. Love (1937) 21 Cal.App.2d 623, 70 P.2d 202, observing that the 'amendment was upheld' in Von Badenthal and that the contention that post-submission substitution was unconstitutional had been 'made and rejected' in Love. (People v. Lanigan, supra, 22 Cal.2d 569, 578, 140 P.2d 24.) The Von Badenthal majority addressed the question of whether the requirements of section 1089 had been met but did not address the question of the constitutionality of a post-submission substitution other than to reject, without discussion, a claim of double jeopardy. (People v. Von Badenthal, supra, 8 Cal.App.2d 404, 410--413, 48 P.2d 82.) ² Love summarily addressed the constitutionality of section 1089, concluding, 'We are of the view that this section is constitutional.' (People v. Lowe, supra, 21 Cal.App.2d 623, 628--629, 70 P.2d 202, 205.) The constitutionality of substitution following commencement of deliberations, however, should not rest on so tenuous a basis.

Substitution of an alternate juror upon a showing of good cause is desirable to maintain judicial efficiency. By means of substitution retrial of lengthy cases may be avoided. Substitution, however, may trench upon a defendant's right to trial by jury. (U.S.Const., Amend. VI; Cal.Const., art. I, § 16) ³ and we must therefore examine the nature of that right.

'Trial by jury is an inviolate right and shall be secured to all . . ..' (Cal.Const., art. I, § 16.) The right is guaranteed as it existed at common law at the time the state Constitution was adopted and may not be abridged by act of the Legislature. (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286--287, 231 P.2d 832; People v. Kelly (1928) 203 Cal. 128, 133, 263 P. 226.) The Legislature may, however, establish reasonable regulations or conditions on the enjoyment of the right as long as the essential elements of trial by jury are preserved. (People v. Peete, supra, 54 Cal.App. 333, 363--364, 202 P. 51.) Among the essential elements of the right to trial by jury are the requirements that a jury in a felony prosecution consist of 12 persons and that its verdict be unanimous. (Cal.Const., art. I, § 16; Code Civ.Proc., § 194; People v. Superior Court (Thomas), supra, 67 Cal.2d 929, 932, 64 Cal.Rptr. 327, 434 P.2d 623.)

Petitioner contends that the foregoing elements of the right to a trial by jury are part of the broader right which additionally requires each juror to have engaged in all of the jury's deliberations. We agree. The requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach their consensus through deliberations which are the common experience of all of them. It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset of a new juror enters the decision-making process after the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity.

We thus reject the People's contention that substitution of an alternate juror after deliberations have begun under the authority of section 1089 does not offend the constitutional mandate when deliberations are not commenced anew. But we also reject defendant's contention that a mistrial must be declared when a juror is dismissed for good cause after deliberations have begun. To declare a mistrial would surely present the opportunity to satisfy the essential requirement that a verdict be unanimously reached by 12 fully participating jurors in a subsequent retrial, but the right to trial by jury does not require a declaration of a mistrial when a properly qualified alternate juror is available and that juror fully participates in all of the deliberations which lead to a verdict.

Bearing in mind the essential element that 12 fully participating jurors reach a unanimous verdict, we have examined section 1089 and conclude that when properly construed it does not trench upon that element. Section 1089 provides that the trial court may in its discretion call alternate jurors and that the alternate jurors must be selected from the same source as the other jurors, in the same manner, with the same qualifications, and subject to the same challenges. Alternates are provided equal opportunity to see and hear all of the proceedings. They take the same oath as the other jurors and must attend trial with them. They are bound by the orders and admonitions of the court, and if confinement is ordered they are confined with the other jurors prior to final submission of the case. After final submission they are sequestered apart from the deliberating jurors.

Substitution is allowed before final submission for deach or illness of...