People v. Hernandez

• Decision Date: 20 March 2003
• Docket Number: No. S105271.,S105271.
• Citation: 64 P.3d 800,131 Cal.Rptr.2d 514,30 Cal.4th 1
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Manuel HERNANDEZ, Defendant and Appellant.

131 Cal.Rptr.2d 514

30 Cal.4th 1

64 P.3d 800

The PEOPLE, Plaintiff and Respondent, v. Manuel HERNANDEZ, Defendant and Appellant.

No. S105271.

Supreme Court of California.

March 20, 2003.

Nancy J. King, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, Kenneth C. Byrne, Lance E. Winters, Donald E. De Nicola and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

In this case, we must decide whether the improper discharge of a single seated juror during a criminal trial warrants not only a reversal of the ensuing judgment of conviction, but also bars retrial of the defendant on double jeopardy principles. We conclude that, although defendant is entitled to the benefit of a reversal of his conviction by reason of the error in excusing the juror, he is not also immune from reprosecution. As a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence. (E.g., United States v. DiFrancesco (1980) 449 U.S. 117, 131, 101 S.Ct. 426, 66 L.Ed.2d 328 (Di-Francesco).) Accordingly, we respectfully disagree with the Court of Appeal's ruling that defendant is immune from reprosecution simply because the trial court erred in discharging a single juror.

Manuel Hernandez appeals from the judgment entered following a jury trial that resulted in his conviction on 22 counts of sexual abuse of a child under 14, lewd acts on a child, oral copulation of a person under age 16, and sexual penetration by a foreign object. He received a sentence of 43 years four months. The Court of Appeal concluded the trial court committed reversible error by removing a juror from the panel near the end of trial, and we will assume, for purposes of our discussion, that conclusion was correct. The Court of Appeal also held that double jeopardy principles would bar a retrial. After granting review, we limited the issues to the question whether double jeopardy bars retrial. As will appear, we reverse the Court of Appeal's judgment and remand for further proceedings consistent with this opinion.

FACTS

The following uncontradicted facts are largely taken from the Court of Appeal opinion in this case. Near the end of trial, and before cross-examination of defendant, Juror No. 8 informed the court that she was bothered by the tone of the prosecutor's cross-examination of a defense witness and her perception that during the testimony, both the prosecutor and the judge were smirking or making faces. After a colloquy with the court and prosecutor, the juror denied that she would be unfair but admitted she was "disappointed in certain aspects" of the trial.

The trial court nonetheless concluded, based on Juror No. 8's remarks and "body language," that "I don't think she can give a fair trial to the People. I don't think she should be kept on the jury." The prosecutor agreed, noting his concern about the juror's emotional state.

Defendant's attorney stated he would describe Juror No. 8's behavior as "concerned." He stressed that Juror No. 8 "stated she could be fair," and therefore he would "oppose a challenge for cause." The court nonetheless concluded that "the totality of the circumstances," showed the juror's ability to do her job and "remain an impartial juror without leaning towards one side or the other" had been "substantially impaired." The court then invited a challenge for cause on the part of the prosecution, and promptly granted the request.

After removing Juror No. 8, the court designated an alternate juror to take her place, and trial resumed, culminating in a guilty verdict.

THE COURT OF APPEAL'S DECISION

On appeal, this case presented three discrete issues: (1) Did the court err in discharging Juror No. 8? (2) If so, was the error prejudicial? And (3) if prejudicial error occurred, do double jeopardy principles bar retrial? As previously noted, the Court of Appeal found prejudicial error in discharging the juror, and for purposes of our review, we accept that determination. (See People v. Cleveland (2001) 25 Cal.4th 466, 484-86, 106 Cal. Rptr.2d 313, 21 P.3d 1225; People v. Hamilton (1963) 60 Cal.2d 105, 128, 32 Cal. Rptr. 4, 383 P.2d 412, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33.) We disagree, however, with the Court of Appeal's further conclusion that double jeopardy bars retrial.

The Court of Appeal reasoned that the trial court's error in excusing Juror No. 8 was comparable to declaring a mistrial without legal necessity. The appellate court correctly observed that a discharge of the entire jury without a verdict is equivalent to an acquittal and bars a retrial unless defendant consented to it, or legal necessity required it. (E.g., Curry v. Superior Court (1970) 2 Cal.3d 707, 717-718, 87 Cal.Rptr. 361, 470 P.2d 345; Paulson v. Superior Court (1962) 58 Cal.2d 1, 9, 22 Cal.Rptr. 649, 372 P.2d 641; see Crist v. Bretz (1978) 437 U.S. 28, 34, fn. 10, 98 S.Ct. 2156, 57 L.Ed.2d 24.) According to the Court of Appeal, the "unnecessary mistrial" rule is founded on the idea that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal. . . ." (Green v. United States (1957) 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199; see Curry, supra, at p. 717, 87 Cal.Rptr. 361, 470 P.2d 345.)

The Court of Appeal further reasoned that, in light of the unnecessary mistrial rule, "it necessarily follows that reconstituting a jury by discharging one or more of its members over defense objection without proper justification must lead to the same result, particularly where, as here, the discharge resulted in a jury less favorable to the defendant." The Court of Appeal observed that under Penal Code section 1089, the substitution of an alternate juror for one of the regular jurors may be accomplished only upon "good cause." Prior cases have indicated that, assuming compliance with Penal Code section 1089, jeopardy does not attach until the alternate juror is sworn (e.g., In re Mendes (1979) 23 Cal.3d 847, 853, 153 Cal. Rptr. 831, 592 P.2d 318; People v. Hess (1951) 107 Cal.App.2d 407, 425-426, 237 P.2d 568), and the discharge of a juror for good cause amounts to a legal necessity satisfying any claim of double jeopardy (see People v. Collins (1976) 17 Cal.3d 687, 696-697, 131 Cal.Rptr. 782, 552 P.2d 742). Here, however, we assume for purposes of this appeal that Juror No. 8 was discharged without good cause. In the present Court of Appeal's view, that improper discharge was legally equivalent to an unnecessary mistrial.

The Court of Appeal found support in People v. Young (1929) 100 Cal.App. 18, 279 P. 824 (Young), a case which took the position that double jeopardy principles forbid retrying the defendant following the wrongful discharge of a seated juror over the defendant's objection. In Young, after the regular and alternate jurors were selected, but before receipt of evidence, the trial court permitted the prosecutor to exercise an unauthorized peremptory challenge against one of the regular jurors who had belatedly admitted being acquainted with a prospective defense witness. Inexplicably, the court replaced the juror from the venire rather than using one of the alternate jurors. Young, in barring future retrial, reasoned that upon the selection of the original jury and alternates, jeopardy attached and defendant could not be again subjected to jeopardy unless the jury was discharged before reaching its verdict, with his consent or by reason of some legal necessity. (Id at p. 23, 279 P. 824.)

The present Court of Appeal concluded that to allow the prosecution to retry defendant would violate several related policies underlying the double jeopardy clause, namely, protecting the interest of the accused in retaining his "chosen jury" (see Crist v. Bretz, supra, 437 U.S. at p. 35, 98 S.Ct. 2156), assuring a fair and impartial jury rather than one selected by the prosecution (see Young, supra, 100 Cal.App. at p. 23, 279 P. 824), and avoiding trials that unduly favor the prosecution (Larios v. Superior Court (1979) 24 Cal.3d 324, 329, 155 Cal.Rptr. 374, 594 P.2d 491). The Court of Appeal observed that "[i]f the result of discharging a juror sympathetic to the defense without good cause was nothing more than a reversal of the conviction and remand for trial minus the offending juror, we fear such discharges could become routine."

DISCUSSION

We disagree with the Court of Appeal's legal reasoning, its application of the various policy concerns underlying the double jeopardy clause, and its concern about "routine" improper discharges of seated jurors. As we explain below, (1) generally, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence, (2) the policies underlying double jeopardy do not warrant the ultimate sanction of immunity from prosecution under the circumstances in this case, and (3) no "routine" discharge of jurors in violation of Penal Code section 1089 could occur without the routine concurrence of the trial court, a highly unlikely prospect.

As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial. (DiFrancesco, supra, 449 U.S. at p. 131,101 S.Ct. 426; United States v. Scott (1978) 437 U.S. 82, 90-91, 98 S.Ct. 2187, 57 L.Ed.2d 65; Burks v. United States (1978) 437 U.S. 1, 14-15, 98 S.Ct. 2141, 57 L.Ed.2d 1;...