Appellant, William Satele, Reply Brief - California Courts - State of ...

participation ofall jurors. Contrary to respondent's argument, the fact that the
court used the word "now" in the instruction (RB at p. 219) did nothing to convey
this crucial requirement that the jury must throw out all previous deliberations and
start over. Without such an instruction, the original jurors could very well
participate in further deliberations, even though they had already reached his or
her conclusion, based on full and complete deliberations that had already occurred.
In summary, the instruction given to the jury was devoid of the crucial
element instructing the jury to begin deliberations anew. As will be shown, there
is every reason to conclude that the jury did not begin the deliberative process
anew and that the replacement jurors were not given the opportunity to participate
fully.
C. Appellant Was Prejudiced By The Failure Of The Trial Court To Instruct
The Newly Reconstituted Jury To Begin Deliberations Anew.
In disputing the existence ofprejudice, respondent dismisses as speculation
appellant's argument that "[t]here is a natural tendency among people to not want
to re-harsh matters that have previously been reviewed and possibly resolved"
(AOB at p. 242.) Respondent argues that "[s]uch speculation cannot form the
basis for a successful attack on the verdict or judgment. (People v. Anderson
(1990) 52 Ca1.3d 453,483.)" (RB at p. 219.)
Ifby "speculation" respondent means the attempt to understand how a jury
might be influenced by certain evidence or instructions, then in every analysis of
prejudice there is some degree of"speculation."
In fact, California law regarding the evaluation of prejudice from juror
misconduct or other errors occurring during deliberations actually compels
"speculation." Evidence Code § 1150 provides:
Upon an inquiry as to the validity of a verdict, any otherwise
admissible evidence may be received as to statements made, or
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