People v. Davis
Decision Date | 08 August 1972 |
Docket Number | Cr. 10114 |
Citation | 103 Cal.Rptr. 494,27 Cal.App.3d 115 |
Court | California Court of Appeals Court of Appeals |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. John A. DAVIS, Defendant and Appellant. |
Richard J. Kula, Arcata, for appellant.
Evelle J. Younger, Atty. Gen., Herbert H. Ashby, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen.--Appeals Section, Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for respondent.
This is an appeal from a judgment of conviction following a trial by jury which found appellant guilty of violations of Health and Safety Code section 11915 ( ); Bus. & Prof. Code, section 4143 ( ); Penal Code section 12021 ( ); and Penal Code section 12025 ( ).
We have concluded that appellant's contention that his defense of not guilty by reason of double jeopardy is meritorious and that conclusion makes it unnecessary to consider other issues.
After a jury of twelve had been selected and sworn, the trial judge announced his decision to call one alternate juror. There was one prospective juror left who was challenged by the prosecution. A new jury panel was sent for and just as the sworn jury was about to leave the courtroom, the following colloquy between the judge and a juror took place:
The district attorney moved for a mistrial. The court dismissed the jury stating:
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 cities 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: (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 jeopardy would arise. (People v. Hess, 104 Cal.App.2d 642, 680--681, 234 P.2d 65.) In People v. Burns, Supra, 84 Cal.App.2d 18, 189 P.2d 868, and People v. Hess, Supra, 107 Cal.App.2d 407, 237 P.2d 568, the holding that jeopardy does not attach until the alternates are sworn should be limited to a holding that substantial compliance with Penal Code section 1089 precludes the later raising of an argument of former jeopardy.
The court, in the instant case, did not proceed to excuse Juror Goff and substitute an alternate in his place. When the procedures of Penal Code section 1089 are not followed and alternate jurors chosen, jeopardy attaches after the swearing of the original jury. (See Jackson v. Superior Court, 10 Cal.2d 350, 356, 74 P.2d 243.) An unwarranted discharge of the jury thereafter gives rise to the defense of former...
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