3575. Substitution of Alternate Juror: During Deliberations
One of your fellow jurors has been excused and an alternate juror has been selected to join the jury.
Do not consider this substitution for any purpose.
The alternate juror must participate fully in the deliberations that lead to any verdict. The People and the defendant[s] have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will only be assured if you begin your deliberations again, from the beginning. Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place.
Now, please return to the jury room and start your deliberations from the beginning.
Bench Notes
Instructional Duty
The court has a sua sponte duty to give this instruction if an alternate juror has been seated. (People v. Collins (1976) 17 Cal.3d 687, 693-694 [131 Cal.Rptr. 782, 552 P.2d 742], overruled on other grounds in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19 [127 Cal.Rptr.2d 544, 58 P.3d 391].)
If an alternate juror is seated during the penalty phase of a capital trial but prior to submission of the penalty phase to the jury, give CALCRIM No. 3576, Substitution of Alternate Juror in Capital Case: After Guilt Determination, Before Submission of Penalty Phase to Jury.
Authority
Statutory Authority to Seat Alternate Juror. Pen. Code, § 1089.
Jury Must Be Instructed to Disregard Previous Deliberations. People v. Collins (1976) 17 Cal.3d 687, 693-694 [131 Cal.Rptr. 782, 552 P.2d 742], overruled on other grounds in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Renteria (2001) 93 Cal.App.4th 552, 559 [113 Cal.Rptr.2d 287].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 512.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 81, Jury Selection and Opening Statement, §§ 81.01[2], 81.05[4]; Ch. 85, Submission to Jury and Verdict, § 85.05[1] (Matthew Bender).
(New January 2006)