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 misconduct would not in any way affect the future decisions of the jury once he was replaced by an alternate. Any “presumption of prejudice” by the misconduct referred to by the *562majority was properly overcome. This determination is, of course, a factual question for the trial court and should not be reversed by us unless there is no evidence to support it. In my view, there was ample evidence to support a finding whether specific or implied that the jurors could conscientiously continue their deliberations; therefore, I dissent with the majority opinion that a mistrial should have been declared.
After Updyke’s removal, the court again instructed the reconstituted jury that it should consider the evidence with respect to each defendant separately. The jury then spent approximately two more days deliberating on the evidence against each defendant. Surely, this is a strong indication that they were acting conscientiously and free of any influence from Updyke. It must be remembered that the only misconduct charged to Updyke was that he wanted the jurors to consider the charges against the two defendants as a package. The record, I believe, overwhelmingly supports the conclusion that the jurors acted in accordance with the court’s instructions.1 There is no evidence that Updyke’s misconduct, or the court’s delay in discharging Updyke, carried over on other matters such as turning one juror against another, or wore down their determination so that they decided the case contrary to the instructions. Updyke’s removal restored the jury to its proper position and permitted the jury to decide the guilt of defendant and Monkhouse separately and impartially.
In Rogers v. County of Los Angeles, 39 Cal.App.3d 857 [114 Cal.Rptr. 540], the court refused to grant a mistrial for a juror’s misconduct. This court (Division 4) said at page 863: “The determination of a motion for a new trial rests so completely within the trial court’s discretion that its decision on the matter will not be disturbed on appeal unless manifest and unmistakable abuse of discretion clearly appears.”
There was no abuse of discretion here and I would affirm the conviction.
People v. Collins, 17 Cal.3d 687 [131 Cal.Rptr. 782, 552 P.2d 742], was decided after this case and we do not know if the rule cited in the majority opinion will be retroactively applied. It did, however, hold that failure to instruct the jury to “deliberate anew” was harmless error in *563view of the strong record. A review of the record here might justify a similar determination. However, since I am alone in voting to affirm such a review would be futile.
The other 11 jurors clearly understood the court’s instruction on this point before Updyke was removed because they explained to him that he was wrong in his suggestion for this very reason. On questioning by the court, he admitted that he had misunderstood the instruction at first, but that other jurors had pointed this out to him.