Opinion
A128241
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL KENARD CORNELIUS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C157206)
In January 2010, a jury convicted appellant Michael Kenard Cornelius of three counts of first degree burglary (Pen. Code, § 459) and four counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court sentenced him to state prison. On appeal, appellant contends: (1) the court erred by including language on contingent intent in the burglary jury instruction; (2) the prosecutor's failure to timely disclose a crime scene technician's report "violated [his] statutory and constitutional rights;" and (3) the prohibition against double jeopardy barred his January 2010 trial. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We provide an overview of the facts here. We provide additional factual and procedural details as germane to the discussion of appellant's specific claims.
In December 2007, the prosecution charged appellant with seven felonies: three counts of first degree burglary (§ 459) and four counts of assault with a deadly weapon (§ 245, subd. (a)(1)). In November 2008, trial began. The court swore the regular jurors and indicated it would begin swearing the alternate jurors. Before the court could swear the alternate jurors, however, the prosecution disclosed it had discovered blood stains on the clothing appellant was wearing when he was arrested. In response, appellant requested additional time to test the evidence. The parties agreed to discharge the jury to enable appellant to test the evidence; they also agreed jeopardy did not attach because the court had not sworn the alternate jurors. Appellant's second trial began in January 2010.
On the evening of May 6, 2007, Peter Wise and his then-girlfriend were in their apartment on Milvia Street in Berkeley. They went to bed around 9:00 p.m. with one of the windows open. At approximately 12:30 a.m. on May 7, 2007, Wise's girlfriend woke him up because she heard a noise in the living room. Wise ran into the living room and saw a man standing by the window. The man threw a wine bottle at Wise, striking him in the hip, and jumped out the window. Wise looked out the window and saw a shopping cart under the window. In the shopping cart were papers from Wise's laptop bag; the man had taken the bag and the papers it contained from Wise's apartment.
Wise could not identify appellant at trial but he testified appellant was the same general height and build as the intruder.
About an hour later, at 1:45 a.m., Brooke Delarco was asleep in the living room of her duplex on Milvia Street, one block from Wise's apartment. Delarco heard a noise coming from the patio and got up to investigate; she saw a man she later identified as appellant standing at the patio door. He hit Delarco in the face and pushed her back into the living room. Appellant knocked Delarco to the ground, got on top of her, and held a beveled-edge knife to her throat. He held his hand over her mouth and said, "'Shut up. . . . You feel this knife? I'm gonna cut your throat.'" Delarco struggled with appellant and managed to free herself, but her arm was cut and bled during the struggle. She ran out the front door; appellant ran out the patio door. When Delarco reached the walkway outside of the duplex, appellant hit her again and ran away. Appellant stole Delarco's wallet and laptop computer.
At trial, the prosecutor showed Delarco a beveled-edged knife. She testified the knife was similar to the one appellant used during the burglary of her residence.
At 2:00 a.m. that same morning, Lieutenant Bryan Ward was asleep at Berkeley Fire Station No. 5 a few blocks from Delarco's residence. He woke up and saw a man, whom he later identified as appellant, come through a sliding glass door and into his room. When Ward asked appellant, "'Who are you[,]'" appellant said, "'Security'" and walked through the room and out the door. At that point, Ward got out of bed.
Another firefighter, Patrick Tetsall, was awakened by a call from dispatch "for an assault" reported at Delarco's residence. Tetsall left his dorm room to respond to the call. As he did so, he saw appellant carrying a laptop computer. When Tetsall asked appellant who he was, appellant ran away. Tetsall and Ward pursued appellant through the firehouse; during the pursuit, appellant punched Tetsall and stabbed him in the abdomen. Appellant threw the computer over the fence and tried to climb over the fence to escape. Another firefighter, Norman Kreiss, heard the commotion and went to see what was happening. He saw a man he later identified as appellant try to climb over a gate into the firehouse yard. Kreiss yelled at appellant to get down and appellant complied. As Kreiss opened the door to the firehouse, however, appellant bolted and ran into a storage room. Kreiss cornered him and the men began wrestling. As they wrestled, appellant slashed Kreiss with a knife. Then Ward came into the storage room to help Kreiss and "got his hand slashed."
Appellant escaped from the fire station but was eventually found by police officers hiding underneath a deck in the backyard of a nearby residence. Three firefighters identified appellant and the police arrested him. The police found a knife with a beveled edge and a black glove under the deck where appellant was hiding. They also found a pair of white gloves in his pants pocket and a Swiss Army knife. A crime scene technician examined appellant's hands when he was arrested and did not see any blood. The technician did, however, find blood on appellant's pants; DNA testing revealed that the blood matched Delarco's genetic profile. The technician tested the beveled-edged knife for blood; the results were negative. Appellant's fingerprints were not found at any of the burglary locations.
On January 28, 2010, the jury convicted appellant of three counts of first degree burglary (§ 459) and four counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury found true various sentencing enhancements (§§ 12022.7, subd. (a), 12022, subd. (b)(1)) and the court found true appellant's prior convictions. The court sentenced appellant to state prison.
DISCUSSION
I.
Appellant's Challenge to the Burglary Instruction Fails
In his opening statement, defense counsel argued appellant did not burglarize the fire station because there was no evidence he "was doing anything other than trying to leave" the station. In response — and relying on People v. Fond (1999) 71 Cal.App.4th 127 — the prosecutor requested a special jury instruction on contingent intent for purposes of burglary. The instruction provided, "It is not a defense to the crime of burglary that, prior to entry, the intent to commit a theft or some other felony is a contingent one. If you find the evidence proves that, prior to entry, the defendant harbored an intent to commit a theft or some other felony depending on opportunity or circumstance, then the intent element may be satisfied." Defense counsel objected that the proposed instruction violated appellant's due process rights and claimed the instruction weakened the element of intent required to support a burglary conviction.
The trial court rejected appellant's objection to the instruction. It instructed the jury on the intent element of burglary as follows: "The defendant is charged in Counts 1, 3, and 5 with burglary. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant entered a building and when he entered a building, he intended to commit theft or assault with a deadly weapon. [¶] . . . A burglary was committed if the defendant entered with the intent . . . to commit theft and/or assault with a deadly weapon. The defendant does not need to have actually committed theft and/or assault with a deadly weapon as long as he entered with the intent to do so. [¶] The People do not have to prove that the defendant actually committed or attempted to commit theft and/or assault with a deadly weapon. [¶] It is not a defense to the crime of burglary that prior to entry, the intent to commit a theft or some other felony is a contingent one. If you find the evidence proves that prior to entry the defendant harbored an intent to commit a theft or some other felony depending on opportunity or circumstance, then the intent element may be satisfied. [¶] The unlawful intent required to prove burglary must be formed prior to entry into the building. Any intent to commit theft or some other felony formed after entry would not support a finding of burglary." The court also instructed the jury that "The People allege that the defendant intended to commit theft and/or assault with a deadly weapon. You may not find the defendant guilty of burglary unless you all agree that he intended to commit one or both of those crimes at the time of entry. You do not all have to agree on which of those crimes he intended."
During closing argument, the prosecutor explained "the law of burglary" to the jury. The prosecutor repeatedly explained that the intent to commit a felony "has to be formed prior to the entry of the structure. If you develop your intent afterwards, it's not a burglary." The prosecutor also noted that "[t]he intent does not need to be an exclusive intent . . . you needn't have just one exclusive intent. You could have a bunch of intents that depend or are contingent on what develops when you're inside. [¶] Another way to think about it a little bit is, you have an operational flow chart, if the operational flow chart goes something like 'I'm gonna go in, and if I can find something to steal, I will, but if I can't find something to steal and somebody catches me and I have to stab my way out of it, then I'll do that too.' [¶] So you can see that I think the idea of an operational flow chart . . . gets at the same issue of contingent intents." The prosecutor then read the burglary instruction to the jury and emphasized the contingent intent language.
Appellant challenges the burglary instruction on several grounds. First, he contends Fond, supra, 71 Cal.App.4th 127, does not support the special instruction on contingent intent. In Fond, the defendant entered the victim's room in a residential psychiatric hospital and raped her. (Id. at p. 130.) The jury convicted the defendant of burglary and the trial court denied the defendant's motion for new trial. At the hearing on the motion, the trial court "stated the evidence showed 'Mr. Fond entered with the intent to have sex by whatever means. Volition. Okay, great. He was going to have it volitionally. If it wasn't going to be volitional, he was going to take it.'" (Id., at p. 132.)
On appeal, the defendant claimed the trial court erred by denying his new trial motion because the court — independently weighing the evidence as a 13th juror — did not find that he entered the victim's room with the necessary intent. (Fond, supra, 71 Cal.App.4th at p. 132.) In essence, the Fond defendant argued the trial court believed his intent to commit rape was contingent. The appellate court rejected this argument. It explained, "the trial court's comments show it believed [the defendant's] intent to rape was contingent. But even so, [the defendant] still entered with the intent to rape. Burglary is by nature a risky business. It involves chance and opportunity. The burglar's objective will almost always be contingent on something; if nothing else, on not being caught. [¶] The burglar who intends to steal the victim's cash will not be able to avoid punishment because the intent was contingent upon his ability to find the money. Nor will the burglar who intends to steal his victim's goods be relieved of liability because he enters with the belief that there is always the possibility the victim might voluntarily wish to relinquish his property." (Ibid.)
Contrary to appellant's claim, Fond supports the contingent intent language in the burglary instruction given here. The burglary instruction repeatedly — and correctly — informed the jury that burglary that the People were required to prove appellant harbored an intent to commit a theft or other felony when he entered the residence. (See In re Leanna W. (2004) 120 Cal.App.4th 735, 741.) The court's addition of the contingent intent language is consistent with the holding in Fond.
Nor did the prosecutor misstate the contingent intent theory articulated in Fond, supra, 71 Cal.App.4th at page 132. A close look at the prosecutor's closing argument demonstrates that he repeatedly emphasized — consistent with the jury instruction on burglary — that appellant must have harbored a specific intent to commit theft or any other felony when he entered the residence. For example, the prosecutor noted, "it's critical to note that the intent has to be formed prior to the entry of the structure. If you develop your intent afterwards, it's not a burglary." The prosecutor also explained the concept of contingent intent and emphasized, "[h]ere's the caveat: 'The unlawful intent required to prove burglary must be formed prior to entry into the building.' So any intent to commit those crimes that [was] formed after entry would not be intent sufficient to establish a burglary." The prosecutor then argued that appellant possessed the intent to steal when he went into the fire house, not just a plan to hide from the authorities: the prosecutor explained, "if you believe that if an opportunity arose to steal something of value he would have, then that's enough for intent, provided that he formulated that thought prior to entry." The prosecutor's description of the law is consistent with Fond and accurately stated the intent element of burglary. We simply cannot agree with appellant's contention that "[u]nder the prosecutor's theory of intent, a trespasser who has no intention of committing any crime in the . . . premises can . . . nonetheless be held guilty of burglary if intervening and unanticipated events cause him to commit a crime."
At oral argument, defense counsel suggested the court erred by giving the instruction because a "willingness" to commit a theft or some other felony is not equivalent to intent. The problem with this argument is the instruction explicitly informed the jury that appellant must have developed the intent to commit a felony — not a "willingness" — before entering the residence.
Finally, appellant contends the instruction was ambiguous because "[t]he jury could have ignored the part of the instruction which stated that '[i]t is not a defense to the crime of burglary that, prior to entry, the intent to commit a theft or some other felony is a contingent one.'" We disagree. As discussed above, the instruction correctly and unambiguously stated the law. It is consistent with Fond, supra, 71 Cal.App.4th at page 132. Moreover, it is unlikely the jury ignored the language in the instruction or somehow misinterpreted it. The court repeatedly instructed the jury that appellant must have possessed a specific intent to commit a felony when he entered the residences. Considering "the specific language challenged, the instructions as a whole and the jury's findings," we conclude it is not reasonably likely the language defining contingent intent confused the jurors or caused them to misapply the law. (People v. Cain (1995) 10 Cal.4th 1, 36.) We "assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions . . . given." (People v. Mills (1991) 1 Cal.App.4th 898, 918.)
II.
Appellant Was Not Entitled to a Mistrial or Jury Instruction
Based on the Prosecutor's Disclosure
of the Crime Scene Technician's Report During Trial
In 2007 and 2008, appellant requested copies of reports made by prosecution witnesses. On January 19, 2010, the court conducted an Evidence Code section 402 hearing regarding the testimony of Tess Artizada, a Berkeley Police Department crime scene technician. At the hearing, the prosecution provided the defense with a report Artizada had written on May 7, 2007 describing her investigation of the crime scene. The report contained the following information previously unknown to defense counsel: (1) Artizada swabbed appellant's fingers and hands for traces of blood; (2) Artizada collected blood samples at Delarco's house; and (3) Artizada collected DNA samples from the blade and handle of the beveled-edged knife found near appellant when he was arrested.
At the Evidence Code section 402 hearing, appellant moved for a mistrial on the grounds that his due process rights had been violated by the late disclosure. Alternatively, appellant requested an order barring Artizada from testifying about her report or a jury instruction explaining the prosecution's "untimely discovery." Two days later, appellant filed a written "Notice of Motion for Sanctions for Discovery Violation/Brady Violation" seeking a dismissal or a jury instruction regarding the disclosure of Artizada's report. The court denied appellant's motions. First, the court concluded that any evidence the defense could obtain from testing the swabs of appellant's hands was "marginal." Next, the court determined it was "very remote" that the blood at the scene of the Delarco burglary, if tested, would have revealed a source other than Delarco or appellant. Finally, the court noted that the defense had independently tested the knife and that its expert would testify no blood was on it.
The requested instruction read: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] . . . [The prosecutor] failed to disclose the report from Ms. Artizada until the morning of January [19], which is not within the legal time period. The fact that [the prosecutor] did not know of the existence of the report is irrelevant. [¶] In evaluating the weight and significant of that evidence, you may consider the effect, if any, of that late disclosure. [¶] To ensure a fair trial, California statutes and the United States Constitution require the prosecution to produce evidence in its possession, or in the possession of the investigating law enforcement agency, which favors the defense. The evidence from Ms. Artizada, that there was no blood found on the knife . . . and there was no blood found on Mr. Cornelius's hands, fingertips, or fingernails, is evidence which favors the defense. The failure of the prosecution to disclose this information in a timely manner is a violation of the Constitution. In evaluating the evidence in this case, you may consider the effect of this violation of the Constitution.
The court also declined to give defense counsel's proposed jury instruction, ruling that the omission of the report did not cause a prejudicial violation of appellant's constitutional or statutory rights. The court, however, informed the jury before Artizada testified that attorneys for both parties learned of Artizada's report and her collection of evidence on January 19, 2010. Artizada testified that she examined a beveled-edged knife seized when appellant was arrested and did not observe any bloodstains on it. She swabbed the knife and blade using a sterile cotton swab, but she did not test the swabs. Artizada also testified she examined appellant's hands and saw no bloodstains. She swabbed both of his hands with sterile cotton swabs but she did not test the swabs.
A. There Was No Brady Violation
Appellant contends the prosecution's failure to "provide the [crime scene technician's] report and access to the physical evidence to defense counsel" until the seventh day of trial violated Brady v. Maryland (1963) 373 U.S. 83 (Brady). "The prosecution has a duty under the Fourteenth Amendment's due process clause to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment. [Citations.] 'Evidence is "favorable" if it . . . helps the defendant or hurts the prosecution, as by impeaching one of [the prosecution's] witnesses.' [Citation.] 'Evidence is "material" "only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different."' [Citations.] Such a probability exists when the undisclosed evidence reasonably could be taken to put the whole case in such a different light as to undermine confidence in the verdict. [Citations.]" (In re Miranda (2008) 43 Cal.4th 541, 575; see also People v. Verdugo (2010) 50 Cal.4th 263, 279.)
We first address the information in the report that Artizada inspected and swabbed appellant's hands for traces of blood. The People concede the information is favorable for Brady purposes. The People, however, argue no Brady violation occurred because the observations in Artizada's report "were disclosed to the defense in time for their effective use at trial." The People are correct. "[E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery." (People v. Morrison (2004) 34 Cal.4th 698, 715.) In other words, "[n]o denial of due process occurs if Brady material is disclosed to [the accused] in time for its effective use at trial." (United States v. Higgs (3d Cir. 1983) 713 F.2d 39, 44.) Here, defense counsel received Artizada's report before she testified at trial; she testified on direct and cross-examination that her visual inspection of appellant's hands did not reveal any traces of blood. As a result, the disclosure of Artizada's observations about the lack of blood on appellant's hands was disclosed in time for appellant to make "effective use" of it at trial. (Id. at p. 44.)
Appellant was not entitled to a mistrial or jury instructional on the disclosure for an additional reason: the evidence that Artizada did not see blood on appellant's hands was not material under Brady. Appellant's perfunctory complaint that the late disclosure somehow "hindered the defense's opportunity to investigate and prepare for trial" does not establish that earlier disclosure of the evidence would have altered the result at trial, particularly where numerous witnesses identified appellant at trial and described his role in the burglaries and assaults. Moreover, when police arrested appellant, they found gloves, which could have explained the absence of blood on appellant's hands.Therefore, any delay in producing Artizada's report did not prejudice appellant. (People v. Cook (2006) 39 Cal.4th 566, 588.) We reach the same conclusion regarding the evidence that Artizada collected blood samples at Delarco's house. This evidence was not material for Brady purposes because Delarco identified appellant as her assailant and because her blood was found on his pants.
Appellant correctly notes that Delarco testified appellant did not wear gloves during the attack.
Appellant seems to suggest that evidence that Artizada swabbed the beveled-edged knife for DNA was both favorable and material under Brady. According to appellant, evidence of another person's DNA on the knife "would tend to prove that either someone other than him attacked Ms. Delarco, or that the knife which was used as evidence of appellant's guilt actually had nothing to do with the Delarco assault." Even if we assume this evidence is favorable for Brady purposes, we conclude it is not material because it was not likely to "undermine confidence in the verdict. [Citations.]" (In re Miranda, supra, 43 Cal.4th at p. 575.) The court informed the jury that appellant's expert "visually and microscopically examined the knife and no blood was found. He subjected the knife to a presumptive chemical test . . . [and] no blood was found on the knife." Moreover, Artizada testified that she did not see blood on the knife. The likelihood that DNA testing would have shown the DNA of a third-person perpetrator was remote, particularly where Delarco identified appellant and testified that the knife was similar to the one appellant used to assault her.
B. Any Violation of Section 1054.1 Was Harmless
"Section 1054.1 (the reciprocal-discovery statute) 'independently requires the prosecution to disclose to the defense . . . certain categories of evidence 'in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies."' Evidence subject to disclosure includes . . . any '[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts' [citation], and '[a]ny exculpatory evidence.' 'Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)' [Citation.]" (Verdugo, supra, 50 Cal.4th at pp. 279-280, internal citations omitted.)
The prosecutor's violation of section 1054.1 was harmless. (Verdugo, supra, 50 Cal.4th at p. 281.) Appellant contends that "when actions of the prosecution have hindered the defense's opportunity to investigate and prepare for trial, some sanction" is required by section 1054.1. Appellant does not, however, explain how he would have investigated or tried the case differently had the prosecutor disclosed Artizada's report earlier. As we have already explained, any error in not disclosing the report to the defense before trial was harmless because the evidence against appellant was overwhelming, and because there is no reasonable probability that disclosure of the information, or introduction of the evidence described in the report, would have affected the outcome of the trial.
III.
Appellant's January 2010 Trial
Did Not Violate the Prohibition Against Double Jeopardy
On November 3, 2008, the court swore the regular jurors. The next day, and before the court could swear the alternate jurors, the prosecutor advised the court that his investigator had discovered what appeared to be blood on appellant's jacket, shirt, and pants seized from appellant when he was arrested. The prosecutor requested additional time to test the clothing for blood evidence. Both the prosecutor and appellant, acting pro se, "agree[d] to discharge the jury with no jeopardy attached to allow the defendant do to his independent testing" of the evidence.
The court explained to appellant that the selection of a jury in a criminal case is not completed — and jeopardy does not attach — until all the jurors, including alternate jurors, are sworn. Then the following colloquy occurred:
"THE COURT: Mr. Cornelius, let me hear from you. Do you want an opportunity and a time frame in which you can go ahead and analyze all this?
"[APPELLANT]: Yes, your Honor.
"THE COURT: Then the next question is. . . . Are you in agreement that we should let this jury go and give you an opportunity and time to do what you need to do and to make whatever motions you believe are appropriate for purposes of going forth with this discovery, with this evidence, that the District Attorney has now just discovered exists?
"[APPELLANT]: Yes.
"THE COURT: Okay. The import of that is, and I do fully believe that the law, as I have already stated it under People vs. Mendez, supports the fact that . . . jeopardy has not yet attached until all of the jurors, which includes any alternates, are sworn. Therefore, you will be tried again for this. . . . [¶] My only point right now is the fact that you are requesting that the Court discharge this jury, or you are in agreement with the Court discharging this jury in order to allow you to do the testing with the understanding that this will be retried in the future, sir; is that correct?
The court was referring to In re Mendes (1979) 23 Cal.3d 847. In re Mendes has been superseded by statute on another point as stated in People v. Cottle (2006) 39 Cal.4th 246, 254, fn. 2.)
"[APPELLANT]: Yes."
On November 12, 2008, appellant moved to change his plea from not guilty to once in jeopardy. The court denied the motion, concluding jeopardy had not attached because the court had not sworn the alternate jurors. The court also noted that appellant, "with full information and advisement by the court, understood he would not be in jeopardy and the case would continue against him, and he himself wanted the continuance of the matter because of the fact that he had to [test] some newly discovered evidence being the blood evidence in the case. . . . The plea is not guilty, and the defendant's motion is denied."
In January 2009, appellant moved to dismiss the prosecution on the ground that it violated the federal prohibition on double jeopardy. In opposition, the People argued appellant "explicitly waived any right to challenge this prosecution on the grounds of double jeopardy" by agreeing to dismiss the earlier prosecution. The People also argued appellant had "no legitimate double jeopardy claim" under In re Mendes, supra, 23 Cal.3d 847, which "states jury selection is not complete for jeopardy purposes until all jurors are sworn, including alternates." The court denied appellant's motion.
Appellant contends the discharge of the jury in 2008 barred a second trial because jeopardy "had attached at the time his first jury was discharged." He is wrong. In In re Mendes, the California Supreme Court held that where a trial is to be heard with alternate jurors, "jeopardy does not attach for purposes of the double jeopardy clause of either the Fifth Amendment to the United States Constitution or article 1, section 15 of the California Constitution until empanelment of the jury is complete, which entails selecting and swearing in not only the 12 regular jurors, but also any alternate jurors." (People v. Griffin (2004) 33 Cal.4th 536, 565, citing In re Mendes, supra, 23 Cal.3d at pp. 852-854; see also 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 117, p. 463, citing In re Mendes, supra, 23 Cal.3d at p. 852 ["[i]f alternate jurors are to be selected, the jury is not impaneled, and jeopardy does not attach, until the alternate jurors have been sworn"]; see also People v. McDermott (2002) 28 Cal.4th 946, 984, quoting In re Mendes, supra, 23 Cal.3d at p.853 [" the impanelment of the jury is not deemed complete until the alternates are selected and sworn'"].) Here, the court indicated there would be alternate jurors. Under In re Mendes, jeopardy did not attach until the alternate jurors were sworn. Because the court discharged the jury with appellant's approval before swearing the alternate jurors, jeopardy did not attach.
Appellant acknowledges that in In re Mendes, "the California Supreme Court . . . held that jeopardy does not attach for purposes of double jeopardy . . . until alternates are sworn" but argues In re Mendes conflicts with Crist v. Bretz (1978) 437 U.S. 28. The California Supreme Court has considered — and rejected — this argument. (See, e.g., McDermott, supra, 28 Cal.4th at p. 984.)
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Having reached this result, we need not address the People's contention that appellant waived his double jeopardy claim by consenting to discharge the jury before the alternates were sworn.
DISPOSITION
The judgment is affirmed.
Jones, P.J.
We concur:
Simons, J.
Bruiniers, J.