McGhee

Opinion of the Court by Liu, J.

A jury convicted Timothy Joseph McGhee of three counts of first degree murder and four counts of attempted murder. (Pen. Code, §§ 187, 664, subd. (a); all undesignated statutory references are to the Penal Code.) The jury found true the special circumstances that he committed multiple murders (§ 190.2, subd. (a)(3)) and that he committed two of the three murders while participating in, and for the benefit of, a criminal street gang (§ 190.2, subd. (a)(22)). The original jury deadlocked as to penalty. On retrial of the penalty phase, a different jury returned a verdict of death. McGhee’s appeal is automatic. (§ 1239, subd. (b).) Because of the erroneous discharge of a juror during guilt phase deliberations, we must reverse McGhee’s conviction and sentence.

I. FACTUAL BACKGROUND

A. Guilt Phase 1. Prosecution case McGhee was a high-ranking member of the Toonerville street gang. The charges against him in this case stemmed from five separate gang-related shootings that occurred around Atwater Village in Los Angeles between October 1997 and November 2001. The prosecution’s evidence showed that the first shooting, in October 1997, was directed at…