CALCRIM No. 3576. Substitution of Alternate Juror in Capital Case: After Guilt Determination, Before Submission of Penalty Phase to Jury (Pen. Code, § 1089)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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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 for
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(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 (4th ed. 2012) Criminal Trial, § 615.
4 Millman, 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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