Trial court abused its discretion by removing juror who was 15 minutes late without making a reasonable inquiry to determine whether the juror was able to perform the duties of a juror. Young was charged with sexual abuse of his two daughters and a neighbor. On the day the prosecution was set to begin the presentation of its case, Young’s attorney, Barton, was sick and stand-in counsel appeared instead to request a continuance. After discussing scheduling outside the presence of the jury, the trial court explained the jury would be brought in and informed that there would be no proceedings that day. Stand-in counsel agreed that Young did not need to be present for this conversation with the jury because he was in his “jail garb.” When the jury was brought into the courtroom, Juror No. 4 was missing. The court had been unable to reach the juror and had no information about why he was missing. The court then removed Juror No. 4 and replaced him with an alternate. Barton returned the next day, and the jury ultimately convicted Young of all charges. He appealed, arguing that the trial court lacked good cause to excuse Juror No. 4. Held: Reversed and remanded for retrial. A trial court may discharge a juror if a juror dies, becomes ill, or upon other good cause shown to the court that the juror is unable to perform his or her duty. (Pen. Code, § 1089.) Unless the facts clearly establish a sufficient basis for good cause, the court is required to conduct a hearing in counsel’s presence on the question of the juror’s ability to serve. Here, Juror No. 4 was removed for being absent 15 minutes after he was scheduled to report. The court admittedly lacked information regarding the reason he was late and did not conduct a hearing to establish whether Juror No. 4 was still able to perform his duty. Because the trial proceedings were being continued to the next day due to Barton’s illness, the court could have admonished Juror No. 4 once he arrived and ordered him to return the next day, or it could have held a hearing the following day with defendant and counsel present.

Defendant’s constitutional right to counsel was violated by the trial court’s removal of a juror outside his presence when he was effectively not represented by counsel. Young also argued that excusing Juror No. 4 in the absence of both himself and his assigned trial counsel violated his constitutional rights. The Court of Appeal agreed. A criminal defendant has the right to be personally present and also the right to counsel’s assistance at all critical stages of the proceedings. A juror substitution is not necessarily a critical stage in the proceedings if, for example, the facts clearly establish a sufficient basis for removing a juror, at which time that removal may happen outside the presence of both the defendant and counsel because their presence would not make a difference. However, in a situation such as this case, “where the removed juror’s inability to serve is not clear, the presence of counsel could make all the difference.” While Young was represented by stand-in counsel, she was not there to represent Young for any purpose other than agreeing to a continuance and apparently had no prior knowledge of his case. Under these circumstances, Young’s constitutional right to be represented by counsel at this critical stage during the prosecution was violated. Noting that parts of the testimony from the victims were not consistent or credible, and that the alternate juror who replaced Juror No. 4 gave voir dire responses that suggested at least a potential bias in favor of the prosecution, the court could not conclude beyond a reasonable doubt that the removal of Juror No. 4 was harmless. Because the court concluded that Young’s right to counsel was violated, it did not consider determine whether his personal presence was also constitutionally required.

Defendant did not forfeit his right to challenge the removal of Juror No. 4 because his attorney was not present to object when the removal occurred. When the trial court removed Juror No. 4, stand-in counsel did not object. Barton did not object when she returned the following day. The Attorney General argued that Young’s challenge to Juror No. 4’s removal was forfeited by his failure to object. The Court of Appeal concluded there was no forfeiture based on the facts in this case. A failure to object at the time of the removal of a juror forfeits the issue. However, an exception to the forfeiture rule is where an objection would have been futile. In this case, neither Young nor Barton were present to object to Juror No. 4’s removal. The presence of stand-in counsel was explicitly for the purpose of representing Young while the jury was informed of the continuance, therefore, her presence when the juror was removed was “tantamount to having no representation at all.” When Barton returned to court the next day, an objection to the removal of the juror would have been ineffective because the erroneous removal of the juror could not have been remedied at that point. Even if the Court of Appeal had agreed with the forfeiture argument, it would have exercised its discretion to address the merits of the claim.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C077483.PDF