People v. Guzman

HASTINGS, J.,

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…