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Name: People v. Diaz
Case #: B137926
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 01/28/2002
Subsequent History: Rev. denied 4/17/02.

During deliberations at appellant’s trial for attempted murder, a juror expressed that she was intimidated by other jurors, who were leaning on her to change her vote. The next day, the juror said that she had been upset because her brother was very ill, but he had since died, and she felt that she could now deliberate. The judge found good cause to dismiss the juror: her answers to his questions raised questions about her candor, (since she had previously never mentioned the sick brother) the other jurors had stated that she was refusing to deliberate; and she appeared emotionally distraught. Appellant was subsequently convicted. On appeal, he argued that the juror should not have been dismissed, because she was not refusing to deliberate, but merely holding out against a guilty verdict. The appellate court here affirmed. Substantial evidence existed that the juror was not merely reviewing the evidence differently, but was having problems deliberating and had not been candid about it. Therefore, the trial court did not abuse its discretion by discharging her. The trial court should have stayed, pursuant to Penal Code section 654, appellant’s sentences for aggravated mayhem and aggravated assault, where they arose from the same shooting incident which supported appellant’s conviction for attempted murder. There was no error created by the admission of the preliminary hearing testimony of a witness who made a “calculated effort to avoid service of process.”