KARAPETYAN

Following a shootout in the streets of Los Angeles in which two people were killed, appellant, Vartan Karapetyan, was charged with two counts of murder (Pen. Code, § 187, subd. (a)) and one count of conspiracy to commit murder. (Pen. Code, § 182, subd. (a)(1).) In each of the murder counts, appellant was charged with having personally used a firearm. (Pen. Code, § 12022.5.) Additionally, the second count charged appellant with the special circumstance of multiple murders. (Pen. Code, § 190.2, subd. (a)(3).)

A jury found appellant guilty of two counts of second degree murder while personally using a firearm. (Pen. Code, §§ 189, 12022.5.) Appellant was sentenced to concurrent terms of 15 years to life for each murder plus an additional term of 10 years for having personally used a firearm in the commission of the offenses. The appeal is from the judgment.

The only issue raised by appellant is the court’s removal of a juror after the jury had been deliberating for more than five days.

I. Procedural Facts at Trial.

Trial commenced on May 2, 2000, with a trial estimate of 19 days and an intended completion date of May 26, 2000. The trial was completed within the scheduled…

I concur in the majority opinion the trial court erred in excusing Juror No. 12, but dissent in the holding that the error was reversible. In that regard, I interpret the record differently and vote to affirm the judgment.

At trial, the jury was instructed on murder and manslaughter in addition to conspiracy to commit murder. Additionally, if the jury found appellant had personally committed a first degree murder and was also guilty of another murder, the jury was instructed they could find the special circumstance of multiple murders to be true. (Pen. Code, § 190.2.)

It was the prosecution’s theory that appellant or Hovik (appellant’s associate) had initiated the gun battle and, in response to this provocation, Armen Gekchyan had accidentally shot and killed his brother Vahan Gekchyan. Under the provocative act doctrine of People v. Washington (1965) 62 Cal.2d 777 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ], this would make appellant guilty of murder the same as if he had fired the fatal shot.

As the majority correctly points out, the trial court drafted its own instruction on the provocative act doctrine and was apparently not aware of *623 In re Aurelio R. (1985) 167 Cal.App.3d 52,…

MUNOZ (AURELIO), J. [*]

Following a shootout in the streets of Los Angeles in which two people were killed, appellant, Vartan Karapetyan, was charged with two counts of murder (Pen.Code, § 187, subd. (a)) and one count of conspiracy to commit murder. (Pen.Code, § 182, subd. (a)(1).) In each of the murder counts, appellant was charged with having personally used a firearm. (Pen. Code, § 12022.5.) Additionally, the second count charged appellant with the special circumstance of multiple murders. (Pen. Code, § 190.2, subd. (a)(3).)

A jury found appellant guilty of two counts of second degree murder while personally using a firearm. (Pen.Code, §§ 189, 12022.5.) Appellant was sentenced to concurrent terms of 15 years to life for each murder plus an additional term of 10 years for having personally used a firearm in the commission of the offenses. The appeal is from the judgment.

The only issue raised by appellant is the court's removal of a juror after the jury had been deliberating for more than five days.

Trial commenced on May 2, 2000, with a trial estimate of 19 days and an intended completion date of May 26, 2000. The trial was completed within the scheduled time and jury…