P. v. Cruz
Defendant appeals from a judgment convicting him of two counts of first degree murder based on his stabbing of Jose Luis Vargas (count 1) and Ricardo Sanchez (count 3). He raises various contentions of error arising from the trial court's dismissal of a juror after the jury had started deliberations. He also argues the judgment must be reversed because of (1) the failure to strike and admonish the jury regarding inadmissible testimony, (2) his shackling during trial, and (3) the failure to record the reading of the jury instructions.
Court conclude the count 3 verdict must be reversed based on structural error arising from the dismissal of the juror. After the court dismissed the juror and the juror left the courtroom, the jury foreperson told the court that the jury had unanimously reached a verdict on count 3. Later, when the newly constituted jury reached a verdict on count 1, both verdicts were declared and accepted in open court. The dismissed juror was not present when the jury foreperson told the court that a verdict had been reached on count 3, nor when the count 3 verdict was formally acknowledged in open court. The dismissed juror's absence impacted Cruz's constitutional right to a unanimous jury by depriving him of his right to confirm that the guilty verdict on count 3 was the result of a unanimous vote. This error requires reversal of count 3.
Court reject Cruz's remaining assertions of error, and affirm the judgment as to count 1.
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