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 fact, it has been suggested that the problem is so difficult that substitution should not be permitted. (See People v. Aikens (1983) 207 CA3d 209, 215-20, dissenting opn, [danger of undue influence is so high that no further deliberation should occur].)
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, supra. at 211-215, majority opn, [CJ 17.51 good enough under the circumstances]; State v. Miley (OH 1992) 603 NE2d 1070, 1076 [substitution of a juror, after a partial verdict has been returned, for the purpose of continuing deliberations in order to reach a final verdict on the remaining count was plain error in violation of federal constitutional right to trial by jury].)
In light of these special considerations, a supplement to CALCRIM 3575 should be given when the substitution occurs after a partial verdict.
Sample Instruction [Add 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).