California Criminal Jury Instructions (CALCRIM) (2017)

3576. Substitution of Alternate Juror in Capital Case: After Guilt Determination, Before Submission of Penalty Phase to Jury

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3576.Substitution of Alternate Juror in Capital Case:
After Guilt Determination, Before Submission of Penalty Phase to
Jury (Pen. Code, § 1089)
One of your fellow jurors has been excused and an alternate juror has
been selected to take (his/her) place, as provided by law.
For the purposes of this phase of the trial, the alternate juror must
accept [all] the verdict[s] and finding[s] returned by the jury in the
prior phase[s] of the trial.
In this phase of the trial, you must now determine what penalty is
appropriate in light of the prior verdict[s] and finding[s] and all the
other evidence that bears on this question. The People and the
defendant[s] have the right to a verdict on the issue of penalty that is
reached only after full participation of the jurors whose votes determine
that verdict. This right may be assured only if the alternate juror
participates fully in the deliberations, including any necessary review of
the evidence presented in the prior phase[s] of this trial.
New January 2006
BENCH NOTES
Instructional Duty
This instruction may be used if an alternate juror has been seated for the penalty
phase of a capital trial. (People v. Cain (1995) 10 Cal.4th 1, 66–67 [40 Cal.Rptr.2d
481, 892 P.2d 1224]; 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].) It is
unclear if the court has a sua sponte duty to give this instruction. (Compare People
v. Cain, supra, 10 Cal.4th at pp. 66–67 [instruction approved]; People v. Renteria
(2001) 93 Cal.App.4th 552, 559 [113 Cal.Rptr.2d 287] [court required to give
Collins instruction when juror substituted during guilt deliberations; noncapital
case]; People v. Cunningham (2001) 25 Cal.4th 926, 1030 [108 Cal.Rptr.2d 291, 25
P.3d 519] [no error in failing to give instruction on beginning guilt phase
deliberations anew where alternate juror seated for penalty phase]). The preferred
approach would be to give the instruction when relevant.
In People v. Cain (1995) 10 Cal.4th 1, 64–65 [40 Cal.Rptr.2d 481, 892 P.2d 1224],
the trial court gave a longer explanation of what verdicts and findings the alternate
juror was required to accept. The committee believes that the second paragraph of
this instruction sufficiently explains this concept. However, if the court would like
to provide a more detailed explanation, the court may insert the following after that
paragraph:
For (that/those) offense[s] for which the jury returned a verdict of guilty and
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for (that/those) special circumstance[s] that the jury found to be true, the
alternate juror must accept that those matters have been proved beyond a
reasonable doubt. [Similarly, for ((that/those) offense[s] for which the jury
returned a verdict of not guilty/ [and] for (that/those) special circumstance[s]
that the jury found (was/were) not proved), the alternate juror must accept that
(that/those) matter[s] (has/have) not been proved beyond a reasonable doubt.]
[The alternate juror must also accept the jury’s finding at the sanity phase of
this trial.]
If the defendant requests an instruction on lingering doubt regarding guilt, the court
should review the instruction approved of in People v. Cain, supra, 10 Cal.4th at
pp. 64–65. However, the court has no sua sponte duty to instruct on lingering
doubt. (People v. Cunningham, supra, 25 Cal.4th at p. 1030.)
AUTHORITY
• Statutory Authority to Seat Alternate Juror. Pen. Code, § 1089.
Alternate Juror Seated During Deliberations: 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].
• Alternate Juror Seated Prior to Penalty Phase. People v. Cain (1995) 10
Cal.4th 1, 66–67 [40 Cal.Rptr.2d 481, 892 P.2d 1224]; People v. Cunningham
(2001) 25 Cal.4th 926, 1030 [108 Cal.Rptr.2d 291, 25 P.3d 519].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 512.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.24[1] (Matthew Bender).
CALCRIM No. 3576 POST-TRIAL: CONCLUDING
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