Opinion
NOT TO BE PUBLISHED
Super.Ct.No. 06F06656
SCOTLAND, P. J.
A jury found that defendant Jason McKinley Dillingham was guilty of first degree murder (Pen. Code, § 187, subd. (a); further section references are to this code), that he personally discharged a firearm causing the death of the victim (§ 12022.53, subds. (c) & (d)), that he carried out the murder for financial gain (§ 190.2, subd. (a)(1)), and that he killed the victim while lying in wait (§ 190.2, subd. (a)(15)). Defendant was sentenced to prison for life without the possibility of parole for the murder plus a term of 25 years to life for the discharge of a firearm enhancements.
On appeal, defendant claims that the trial court erred by discharging one of the jurors during trial. We disagree and shall affirm the judgment.
FACTS
Defendant agreed to assist another individual in killing the victim at the behest of the victim’s son. Defendant admitted that he was offered $500 for his efforts and that this was the reason he decided to commit the crime. Defendant and another individual shot the victim while he sat in a car outside of a video store. Defendant was paid the next day.
DISCUSSION
Defendant contends the trial court abused its discretion by discharging a juror during trial. In defendant’s view, the person’s inability to perform the functions of a juror had not been established as a “‘demonstrable reality.’” Defendant is incorrect.
After the evidence was presented, but prior to argument, the trial court informed the parties that the court clerk had received a telephone call from Juror No. 9, who stated she was sick with stomach flu and did not want to come to court because she did not think she could get through the proceedings without vomiting. She did not indicate when she would be available to return to court. The court left a message for the juror on her cell phone, which was not returned, and called her home number, which had been disconnected. The clerk also called the juror’s work and determined she was not there. The court announced it appeared there was good cause to replace Juror No. 9, noting it was flu season, and the court did not want the juror “to make sick the other jurors.”
Defendant’s attorney objected, stating he did not “see any good cause” and did not “feel that waiting one day is untoward.” Finding it “telling” that the juror did not pick up the phone at the number she left “so that we could speak with her further,” the trial court concluded: “[B]ased on all of that, the fact that she’s not able to come to court today, the fact that we have all jurors present as well as a number of alternates, and also taking into consideration the fact that this is a -- has been a quite virile flu season in this court, I am inclined and do exercise my discretion. I do find good cause to replace her with an alternate and will do so at this time.”
Section 1089 provides in pertinent part: “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 or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”
“A juror’s disqualification is discretionary with the court.” (People v. Dell (1991) 232 Cal.App.3d 248, 255 (hereafter Dell).) “[T]here is no statutory procedure for determining the existence of a ground of discharge. In the absence of a stipulation by counsel, ‘the judge must act on [her] own motion, expeditiously. [Her] summary determination, on the basis of any evidence... will seldom be successfully challenged.’” (Id. at p. 256, fn. omitted.) But “[t]he court’s discretion is not unbounded: it must determine whether good cause exists to discharge the juror, and its reasons for discharge must appear in the record as a demonstrable reality.” (People v. Roberts (1992) 2 Cal.4th 271, 325.)
When illness is the basis for discharging a juror, a trial court satisfies its duties if it telephones the juror, discusses the matter on the record with counsel, and states on the record its reasons for discharging the juror. (People v. Roberts, supra, 2 Cal.4th at p. 325.)
In Dell, a telephone call from a juror’s cousin was deemed sufficient evidence the juror was too ill to continue functioning as a juror “[i]n the absence of any contrary showing.” (Dell, supra, 232 Cal.App.3d at pp. 254, 256.) The Court of Appeal noted that, in the case of an ill juror, “[w]hen the juror is not present in the courtroom it would appear unreasonable to require the sick or hospitalized juror to come into the courtroom in order to hold a hearing to substantiate the factual basis for the juror’s claim of illness.” (Id. at p. 256.)
Here, Juror No. 9 contacted the court and stated she was ill with stomach flu and unable to attend trial. The court attempted to call the juror at her home number and her cell phone number, confirmed that the juror had not gone to work, and discussed the matter on the record with counsel. The court also set forth the reasons for its exercise of discretion: the juror represented she was not able to come to court; she later did not answer her phone (implying she was too ill to do so); it was “flu season”; and all of the other jurors were present. These reasons do not evince any abuse of discretion by the court.
Defendant argues the court erred “‘by presuming the worst’” when it decided to discharge Juror No. 9 without more information. It is true “[t]he court must make a reasonable inquiry to determine whether the person in question is able to perform the duties of a juror.” (People v. Bell (1998) 61 Cal.App.4th 282, 287.) Here, the court did so. Juror No. 9 was not present and had reported she was ill with stomach flu. Thereafter, the court did what it could to obtain more information about the juror’s circumstances by telephoning her at the numbers she had provided. The juror’s inability to perform the duties of a juror, at least on the day she called in ill, was adequately established by her phone call, and was corroborated by her unresponsiveness to the court’s attempt to contact her and by her absence from work.
In defendant’s view, the court “should have taken a recess for one day.” However, in People v. Bell, supra, 61 Cal.App.4th 282, the appellate court found no abuse of discretion in the discharge of a juror who had a family medical emergency when, “from the facts presented, the [trial] court made a reasonable and permissible inference [the] juror... might not be able to return at all that day,” which would keep the witnesses and other jurors waiting. (Id. at p. 288.) Such was the case here.
Defendant cites a number of decisions, none which addresses juror illness. They all involve an ambiguity whether a juror was “‘unable to perform his [or her] duty,’” as required by section 1089 before a juror can be discharged. (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 843-846 [juror asked whether there was a risk she would be shot if jury found defendant guilty; another juror had a traffic ticket and would lose his job if the district attorney’s office did not assist him in “‘dispos[ing]’” of it]; People v. Compton (1971) 6 Cal.3d 55, 59 [juror told third person that he did not like being “‘on a case like this because it was hard to keep an open mind’”]; People v. Hamilton (1963) 60 Cal.2d 105, 123-124 [juror admitted she read the Penal Code]; People v. Johnson (1993) 6 Cal.4th 1, 21 [an attorney and court staff saw a juror was sleeping during trial]; People v. Green (1995) 31 Cal.App.4th 1001, 1010 [the bailiff and other jurors observed that a juror knew friends and family of the defendant]; People v. Cleveland (2001) 25 Cal.4th 466, 485-486 [jurors reported that a juror was unwilling to deliberate].)
For the reasons stated above, the trial court properly exercised its discretion when it discharged Juror No. 9.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., HULL, J.