In People v. Jenkins (2000) 22 Cal.4th 900, the defendant was convicted of the first degree murder of and conspiracy to murder a peace officer, and the attempted murder of a witness. On appeal, he claimed that because the jury was instructed on accomplice liability as well as on premeditated murder, due process and the right to a unanimous jury verdict required the trial court to instruct on the need for unanimity as to the facts upon which any conviction for the crime of murder was based. Acknowledging that there is no requirement that the jury unanimously agree upon the theory of the defendant's culpability or on the theories of guilt premised upon aiding and abetting and direct culpability, the defendant argued that "in the unusual circumstances of his case, jurors who found him guilty as an aider and abettor would have to find a set of facts to be established entirely different from the facts that jurors would rely upon to find him guilty as a direct perpetrator. Under these circumstances, he claimed, the choice between aiding and abetting and direct culpability was essentially factual. Jurors are required, he contended, to reach a unanimous verdict as to the factual basis for their verdict. Under the peculiar circumstances of his case, he concluded, the unanimity instruction should have been given." ( People v. Jenkins, supra, 22 Cal.4th 900, 1024.) Our state Supreme Court disagreed, holding that the trial court did not err in instructing the jury that defendant could be found guilty of murder either as a direct perpetrator or as an aider and abettor and that the trial court was not required to instruct the jury on the need for unanimity as to the facts upon which any conviction for the crime of murder was based. The California Supreme Court explained: "'It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty. More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. . . . . . . Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes, as probably occurred here, the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other.' Defendant contends that different facts would support aiding and abetting liability and liability as a direct perpetrator, but, as we have explained, the jury need not unanimously agree 'on the precise factual details of how a killing under one or the other theory occurred in order to convict defendant of first degree murder.' Naturally, in order to return a guilty verdict, the jury must agree unanimously that each element of the charged crime has been proved, but the factors that establish aiding and abetting liability are not included as elements of the crime of murder. "The United States Supreme Court also has explained that the jury need not agree on the means by which a crime has been committed, stating that it is appropriate that '"different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict."' " ( People v. Jenkins, supra, 22 Cal.4th 900, 1024-1025.) In People v. Jenkins (2000) during deliberations in the penalty phase of a death penalty case, the jury foreperson sent the court a note indicating one of the jurors was "'not capable of understanding the requirements of the judicial process.'" ( People v. Jenkins, supra, 22 Cal.4th at p. 1045.) The trial court examined the jury foreperson "at some length . . . in order to determine the basis for his assertion that the unidentified juror was incapable of deliberation. . . . After that examination, defense counsel concluded the unidentified juror was the sole holdout in favor of a sentence less than death. In response to the prosecutor's contention that the juror should be excused, defense counsel argued that there was no evidence indicating the juror was refusing to obey the law, and in heated terms accused the court and the prosecutor of attempting to ensure a verdict of death by removing the juror. The juror was not excused." ( Id. at pp. 1045-1046, ) On appeal from his subsequent death sentence, the defendant asserted "the jury's penalty phase deliberations were tainted by the . . . juror's inability to deliberate and follow instructions, and . . . the court erred in failing to examine the juror regarding his or her capacity and in permitting the juror to continue to serve . . . ." ( Id. at p. 1047.)