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F 17.51 n1 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 17.51 n2 Substitution Of Alternate Juror: Failure To Instruct Jury To Begin Deliberations Anew As Reversible Error.
See People v. Renteria (2001) 93 CA4th 552 [113 CR2d 287].
F 17.51 n3 New Deliberations After Substitution Of Alternate As Constitutional Requirement.
People v. Collins (76) 17 C3d 687 [131 CR 782], 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.)
F 17.51a
Substitution Of Alternate Juror After Partial Verdict
*To be added at end of CJ 17.51:
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, CJ 17.51 should be given instructing the jurors to disregard the earlier deliberations. (See People v. Cain (95) 10 C4th 1, 64-65 [40 CR2d 481].) However, a special problem is presented when the substitution occurs after a partial verdict has been rendered. In People v. Thomas (90) 218 CA3d 1477, 1488 [267 CR 865], the court suggested that 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 (83) 207 CA3d 209, 211-21 [254 CR 30] — 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 CJ 17.51 should be given when the substitution occurs after a partial verdict.
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
