People v. Pineda CA5

DISCUSSION

Because Pineda raises two distinct appellate contentions, the first involving the pretrial jury empanelment procedures and the second a post-trial jury instruction claim, we separately outline the relevant factual and procedural backgrounds of each.

I. THE 14-PERSON JURY PANEL

A. Background Before jury selection began, the trial court proposed a slight modification to the usual jury selection process:

“Another thing that I’ve done, and this is up to [Pineda] and the People because it’s — it has to be mutually agreed upon, is rather than picking alternates up front, what I’ve done on other cases is select 14 jurors and then at the conclusion of the evidence and before they retire to deliberate, we’ll randomly select two of the 14 to be the alternates. I do that because I’ve found that it engages all jurors. In other words, if any of the alternates were seated up front, they may not be as inclined to listen to the evidence based upon a misbelief actually that they may never be called to actually have to deliberate with the other jurors. So, that’s something that I’ve done, and it’s worked out pretty well. But I’ll only do that if the parties are okay with that and…