SERIES 3500 POST-TRIAL: CONCLUDING
F 3575 Substitution of Alternate Juror: During Deliberations (PC 1089)
TABLE OF CONTENTS
F 3575 Inst 1 No Duty To Reach Verdict
F 3575 Inst 2 Substitution Of Alternate Juror After Partial Verdict
F 3575 NOTES
F 3575 Note 1 Substitution Of Alternate Juror: Failure To Instruct Jury To Begin Deliberations Anew As Reversible Error
F 3575 Note 2 New Deliberations After Substitution Of Alternate As Constitutional Requirement
F 3575 Note 3 Substitution of Alternate Juror
Return to Series 3500 Table of Contents.
F 3575 Inst 1 No Duty To Reach Verdict
*Modify CC 3575, paragraph 3, sentence 5 as follows [added language is underlined]:
Each of you must disregard the earlier deliberations and decide this case, if you can, as if those earlier deliberations had not taken place.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 3575 Inst 2 Substitution Of Alternate Juror After Partial Verdict
*To be added at end of CC 3575:
You must also disregard the prior verdict(s) and deliberations upon which they were founded in deliberating upon the remaining unresolved verdict(s).
Points and Authorities
When an alternate juror is substituted during deliberations, CALCRIM 3575 should be given instructing the jurors to disregard the earlier deliberations. (See People v. Cain (1995) 10 C4th 1, 64-65.) However, a special problem is presented when the substitution occurs after a partial verdict has been rendered. In People v. Thomas (1990) 218 CA3d 1477, 1488, the court suggested that the predecessor of CALCRIM 3575, CJ 17.51, should be supplemented with a “strong admonition” to both the regular jurors and alternates that they are to “consider the facts unconstrained by any prior determination.” (See also People v. Aikens (1983) 207 CA3d 209, 211-21—majority; CJ 17.51 good enough under the circumstances; dissent—danger of undue influence is so high that no further deliberation should occur.)
In light of these special considerations, a supplement to CALCRIM 3575 should be given when the substitution occurs after a partial verdict.
Identification Of Parties— See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.8 [Right To Individual Juror Determination]
FORECITE CG 7.9 [Duty To Deliberate Fully And Fairly]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.51a.
F 3575 NOTES
F 3575 Note 1 Substitution Of Alternate Juror: Failure To Instruct Jury To Begin Deliberations Anew As Reversible Error
See People v. Renteria (2001) 93 CA4th 552.
CALJIC NOTE: See FORECITE F 17.51 n2.
F 3575 Note 2 New Deliberations After Substitution Of Alternate As Constitutional Requirement
People v. Collins (1976) 17 C3d 687 recognized that substitution of an alternate juror during deliberations may impinge on a defendant’s constitutional right to trial by jury. Collins held that an admonition to disregard previous deliberations and to begin anew is required for the statute (PC 1089) which authorizes substitution of alternate jurors during deliberations to pass constitutional muster. However, the Collins court was careful to ground its ruling on the jury trial provisions of the state constitution (Article I, section 16) rather than the federal constitution which requires neither a 12 person jury nor a unanimous verdict. (Collins, 17 C3d at 692, fn 3.)
CALJIC NOTE: See FORECITE F 17.51 n3.
F 3575 Note 3 Substitution of Alternate Juror
See also FORECITE PG IX(I) [Substitution Of Alternate Juror].
