Mendes, In re

• Decision Date: 11 July 1978
• Docket Number: Cr. 3664,C
• Court: California Court of Appeals Court of Appeals
• Parties: In re Theron MENDES on Habeas Corpus. Michael Louis STEVENSON, Petitioner, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent; The PEOPLE, Real Party in Interest. iv. 3964.

Page 329

147 Cal.Rptr. 329

82 Cal.App.3d 709

In re Theron MENDES on Habeas Corpus.

Michael Louis STEVENSON, Petitioner, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

Cr. 3664, Civ. 3964.

Court of Appeal, Fifth District, California.

July 11, 1978.

Opinion on Hearing, see 153 Cal. Rptr. 831, 592 P.2d 318.

Geo. A. Brown, J., concurred in the result and filed opinion.

George Bumanglag, Visalia, for Theron Mendes.

Vivien C. Ide, Visalia, for petitioner, Michael Louis Stevenson.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Gary A. Binkerd, Deputy Attys. Gen., for respondent and real party in interest.

OPINION

NAIRN, Associate Justice. ^*

The petitioners herein and two other parties were charged with receiving stolen property or attempted receiving stolen property and were jointly tried before the same jury. Petitioner Mendes was convicted and placed on probation on condition he spend 11 months in custody. Though his appeal from the judgment of conviction is pending in this court, habeas corpus is an appropriate remedy (In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073). Petitioner Stevenson's trial resulted in a mistrial, the jury being unable to reach a verdict. He seeks to prevent retrial by prohibition because he claims he was once in jeopardy. Prohibition is a proper remedy to prevent retrial when a defendant has been once in jeopardy (Curry v. Superior Court (1970) 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345).

This is apparently a case of first impression in California. The only relevant facts concern the selection of a jury at petitioners' trial. On January 16, 1978, the jury selection began. At the end of the day 12 jurors had been selected, impaneled and sworn. When the venire had been exhausted without the selection of an alternate, the court announced, "We're going to go ahead without an alternate and you can put that on the record."

On the morning of January 17, 1978, before trial counsel arrived, a juror, Mrs. McQuown, approached the judge and advised him that her brother had died during the night. Without holding a hearing as required by People v. Hamilton (1963) 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412, disapproved on other grounds in People v. Morse (1964) 60 Cal.3d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33, and People v. Manriquez (1976) 59 Cal.App.3d 426, 130 Cal.Rptr. 585, cert. den. 429 U.S. 1003, 97 S.Ct. 536, 50 L.Ed.2d 615, the court summarily excused this juror. When counsel for the defendants were advised of the court's action, they promptly moved for a mistrial. The motions were denied. At this point the court had four options open to it: (1) the court could have held a hearing to determine if there was legal necessity to excuse Mrs. McQuown; (2) it could have granted the motion for a mistrial; (3) seek a personal stipulation from the defendants and the prosecution to proceed with 11 jurors; (4) proceed to select alternates in accordance with the provisions of Penal Code section 1089 and replace the excused juror with an alternate.

The court did not select any of the alternative courses of action; instead it allowed the parties to exercise peremptory challenges on jurors already impaneled and sworn. As a result three of the impaneled jurors were excused peremptorily. The jury was then resworn and two alternates were selected.

The petitioners claim that the court erred in not holding a hearing to determine if cause existed to excuse Mrs. McQuown. In People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537, the court stated:

"Since our decision in People v. Hamilton (1963) 60 Cal.2d 105, 124-127, 32 Cal.Rptr. 4, 383 P.2d 412, the trial court has at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality." (People v. Compton, supra at p. 60, 98 Cal.Rptr. at p. 220, 490 P.2d at p. 540.)

In People v. Manriquez, supra, 59 Cal.App.3d 426, 432, 130 Cal.Rptr. 585, the court held that such a hearing should be summary in nature and scope and although not a full-scale adversary hearing, nonetheless should be complete enough to establish good cause. We conclude that the trial court committed error in not holding a hearing to determine if good cause existed to excuse the juror.

We next turn to the action of the trial court in completely reopening the jury selection process and allowing peremptory challenges to jurors already impaneled and sworn. The Attorney General advocates the position that jeopardy cannot attach until the entire jury, including alternates, if any, are sworn. This position is supported by People v. Hess (1951) 107 Cal.App.2d 407, 237 P.2d 568 and People v. Burns (1948) 84 Cal.App.2d 18, 189 P.2d 868. Both of the cited cases hold that jeopardy does not attach until the entire jury, including alternates, are sworn. However, both cases ignore the fact that a trial judge may proceed to trial with the original 12 jurors. An alternate juror is not a matter of right, rather it is an exercise of discretion permitted under Penal Code section 1089. No case in California has squarely held, without qualification, that jeopardy attaches when the original 12 jurors are impaneled and sworn. In Curry v. Superior Court, supra, 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 364, 470 P.2d 345, 348, our Supreme Court held:

"(J)eopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn, and . . . a discharge of that jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it."

The above was quoted with approval in People v. Compton, supra, 6 Cal.3d 55, 59, 98 Cal.Rptr. 217, 490 P.2d 537.

However, we need not reach a resolution of that precise question to determine the matter before us. In People v. Young (1929) 100 Cal.App. 18, 279 P. 824, the court permitted peremptory challenge to a juror by the prosecution after acceptance by both parties and completion and swearing of the jury. The Young court held that under Penal Code section 1068 a juror may be challenged after being sworn and before the jury is completed only for cause. The court held that the jury was discharged without legal necessity and jeopardy had attached.

In Jackson v. Superior Court (1937) 10 Cal.2d 350, 74 P.2d 243, the jury was impaneled and sworn but before the indictment was read and the plea stated to the jury, the prosecution moved for a mistrial. The motion was granted over the objection of the defendants. The court held that jeopardy attaches to a defendant when he is placed on trial before a court of competent jurisdiction upon a valid indictment or information before a jury impaneled and charged with his deliverance, and a jury stands charged with the deliverance of a defendant when its members have been impaneled and sworn. Jackson has been cited with approval in Curry v. Superior Court, supra, 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345.

People v. Davis (1972) 27 Cal.App.3d 115, 103 Cal.Rptr. 494 attempts to reconcile some of the divergent opinions. In Davis a jury had been impaneled and sworn. One juror stated that he had some exceptions to the narcotic laws but that he thought he could be fair. The prosecution moved for a mistrial. The court dismissed the jury, stating:

" 'Counsel cannot agree on what we should do about this, so the only We have no alternative but to declare a mistrial and start picking the jury all over again. So that the 12 of you are excused and will have to report back to the jury room.'

"Contrary to the opinion of the court, there was a procedure available to meet this situation. Penal Code section 1089 allows the court in its discretion to direct the calling of one or more additional jurors immediately after the jury is impaneled and sworn. If at any time, a juror becomes unable to perform his duties, the court may excuse him and substitute one of the alternate jurors. In two reported cases, reviewing courts have upheld the action of the lower court when a juror was discharged before the alternates were sworn. In People v. Burns, 84 Cal.App.2d 18, 189 P.2d 868, a juror was excused when he revealed, after being sworn, that a criminal charge was pending against him. The defendants argued that they faced two juries and that jeopardy attached as soon as the original 12 jurors were sworn. The Attorney General cites this case for the proposition that jeopardy does not attach until the entire jury selection process is finished, including the selection and swearing of alternate jurors. This was the decision of the court but the decision must be viewed in the context of the action taken by the trial court for the reviewing court explained: 'If the substitution of the alternate for one of the regular jurors is in accordance with the provisions of Penal Code section 1089 no question of double jeopardy would arise. This can only be true if the substitution of the alternate for the regular juror does not destroy the unity of the jury. It does not destroy the unity of the jury because the jury is not complete until the alternate is accepted and sworn and the alternate is at all times a potential member of the regular jury.' (P. 32, 189 P.2d p. 876.)

"In People v. Hess, 107 Cal.App.2d 407, 237 P.2d 568, a juror was excused after being sworn because of her precarious health. Only after excusing this juror, did the trial court proceed to order alternates chosen and to substitute one of the alternates for the discharged juror. This procedure was approved by the reviewing court.

"When the court proceeds to substitute an alternate juror in accordance with the procedure set forth in Penal Code section 1089, no question of double...