P.v . Roman
A jury convicted Enrique Roman of second degree murder (Pen. Code, 187, subd. (a); count one); and assault resulting in the death of a child under the age of eight (Pen. Code, 273ab; count two.) The trial court sentenced him to 25 years to life in prison on count two and imposed but stayed the count one sentence under section 654. Roman moved for a new trial under section 1181 based on alleged prosecutorial misconduct. The trial court denied the motion. Roman contends the trial court erroneously: (1) denied his motion for mistrial brought on the grounds that his constitutional right to an impartial jury was violated because the jury was not drawn from a fair cross-section of the community; (2) excluded evidence relating to his defense; (3) admitted evidence regarding his prior acts; (4) failed to instruct sua sponte on the lesser included offenses of aggravated assault and simple assault; (5) failed to properly instruct regarding reasonable doubt; (6) discharged a juror during deliberations; (7) imposed on him a sentence that violated the prohibition regarding cruel and unusual punishment. Court conclude the trial court prejudicially erred in discharging a juror during deliberations and substituting an alternate juror. Court reverse.
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