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.

Assigned by the Chairperson of the Judicial Council.

Roger Crist, as Warden etc. v. L. R. Bretz et al., No. 76-1200, June 14, 1978, 46 Law Week 4639.

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, [147 Cal.Rptr. 331] 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 [147 Cal.Rptr. 332] 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 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, (113 A.L.R. 1422).) An unwarranted discharge of the jury thereafter gives rise to the defense of former jeopardy and a discharge is unwarranted unless the defendant consented thereto or legal necessity required it. (Curry v. Superior Court, 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345; see 1 Witkin, Cal.Crimes (1963) p. 183." (People v. Davis, supra, 27 Cal.App.3d at pp. 118-119, 103 Cal.Rptr. at pp. 496-97.)

In the case at bench, the court did not follow the procedures set forth in Penal Code section 1089. The Attorney General concedes and the trial court stated that the original 12 jurors were impaneled and sworn. There is no question that if the court had selected an alternate to replace Mrs. McQuown and then selected two alternates, and proceeded with the trial, the Penal Code section 1089 requirements would have been met and jeopardy would not have attached. (See People v. Hohensee (1967) 251 Cal.App.2d 193, 59 Cal.Rptr. 234; People v. Hess (1951) 104 Cal.App.2d 642, 234 P.2d 65.)

We conclude, however, that when the court permitted the exercise of peremptory challenges to the original jurors after the jury had been sworn, a discharge of the jury was effected without legal necessity. Therefore, jeopardy attached and the writs should issue. (U.S.Const., 5th Amend.; Cal.Const., art. 1, § 15.)

[147 Cal.Rptr. 333]As to petitioner Stevenson, a peremptory writ of prohibition shall issue barring his retrial.

As to petitioner Mendes, the writ of habeas corpus shall issue freeing petitioner from custody.

The Superior Court of Tulare County is directed to accept the pleas of once in jeopardy and dismiss the information as to the petitioners.

FRANSON, J., concurs.

GEO. A. BROWN, Presiding Justice, concurring.

I concur in the result.

First, it is observed that the whole record is susceptible of the conclusion that the court intended to impanel one or more alternate jurors from the beginning. Some further elaboration of the facts germane to this conclusion is required.

Near the end of the first day the first 12 jurors were selected and sworn. At that time there were two potential jurors left. At the suggestion of counsel the court announced an alternate would be selected. After questioning one of the potential jurors he was excused. The second and last juror was questioned and after adjournment was excused by the judge. However, before adjournment he remarked to the potential juror, "I'll have to ask you to come back tomorrow morning, sir."

The last entry was at 5:29 p. m., which records the judge's statement as being, "We're going to go ahead without an alternate, and you can put that on the record." The remark as recorded is inconsistent with calling the prospective juror back, is inconsistent with the fact that the court had a panel of prospective jurors waiting the next morning from which to select the alternate, and is inconsistent with the court's remarks the next morning and with the remarks of the court during the motion to dismiss on grounds of double jeopardy during the third day.

The next morning the court announced that it was going to select a juror to replace Mrs. McQuown and then select two alternates in that order. When the actual impanelment began, after inquiry by counsel, the court opened up peremptory challenges (using unused challenges) to the balance of the initial 12 sworn jurors. Three additional jurors were peremptorily challenged and replaced.

During the proceedings on the motion for dismissal during the third day the judge, in referring to the court's alleged remark regarding selection of alternates at the end of the first day, stated:

"I had called an alternate that we were going to start working on, and because we didn't have any other prospective jurors in the courtroom, I then declared our evening recess with the intention of securing some more. I do think that I made a comment that could be interpreted as saying that 'We're not going to have any alternates because we don't have any jurors available.' If I did make that comment, for whatever effect it may have, it was my intention at that time to see if they could subpoena more jurors in the morning so we could select alternates, as we did yesterday morning."

It thus appears that the court had in mind from the beginning that an alternate or alternates would be selected, and any record conflict in this regard must be resolved in favor of the court's order.

In any event the judge had the discretion to change his mind about the necessity for alternates. See People v. Hess (1951) 107 Cal.App.2d 407, 237 P.2d 568, wherein the court changed its mind and impaneled alternates four days after the initial twelve jurors were sworn, one of whom replaced a juror who had at that time been excused.

Turning to the relevant legal principles, it is settled in California that "jeopardy 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. (Citations.)" (Curry v. Superior Court (1970) 2 [147 Cal.Rptr. 334] Cal.3d 707, 712, 87 Cal.Rptr. 361, 364, 470 P.2d 345, 348; see Crist v. Bretz (1978) --- U.S. ----, 98 S.Ct. 2156, 56 L.Ed.2d ---. ^*)

In Jackson v. Superior Court (1937) 10 Cal.2d 350, 352, 74 P.2d 243, the court equated the attachment of jeopardy as of that point in the proceedings when the jury is charged with the deliverance of a defendant by its members being duly impaneled and sworn. Jackson did not involve alternate jurors. It remained for two Court of Appeal cases (see People v. Burns (1948) 84 Cal.App.2d 18, 189 P.2d 868 (hg. den.); People v. Hess (1951) 107 Cal.App.2d 407, 237 P.2d 568 (hg. den.)) to explicitly hold that a jury is not charged with the deliverance of a defendant until the entire jury selection process, including the impanelment of alternates, is completed, and jeopardy therefore does not attach prior to that time. In People v. Burns, supra, the court impaneled and swore the initial 12 jurors. An alternate was selected but not sworn. At that point the judge disclosed that he had learned that one of the original 12 jurors was, in his opinion, disqualified because he had been informed against by the district attorney in a matter then pending. The court, over the objection of defense counsel, excused the juror and caused the alternate to be sworn and to replace the excused juror. The defendant's motion for dismissal grounded upon double jeopardy was denied. The court posed the question as:

The procedure for impaneling alternate jurors and for excusing impaneled jurors and substituting alternates is contained in Penal Code section 1089, which provides:

"The question now presented is whether in this case, where alternates were ordered, jeopardy attached when the original twelve (including Furner) were sworn, or whether it attached only after the full complement of jurors of both classes was impaneled and sworn." (People v. Burns, supra, 84 Cal.App.2d at p. 25, 189 P.2d at p. 871.)

In a well reasoned opinion the court reviewed the authorities and the provisions of Penal Code section 1089, concluding:

"If, therefore, the jury cannot function until the alternates have qualified, the [147 Cal.Rptr. 335] jury cannot be said to be complete or impaneled until that time. For these reasons we are unable to follow appellants' argument that jeopardy attached in this case when the original 12 jurors were sworn, but must hold that it attached only after the alternate juror was sworn, hence that the appellants faced but one jury." (People v. Burns, supra, 84 Cal.App.2d at p. 26, 189 P.2d at p. 872.)

"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. The requirement of trial by one jury is satisfied, where a jury composed of twelve regular jurors and one or more alternates has been impaneled, if the verdict is returned by twelve jurors sworn to try the case although one or more alternates may be included in the jury which renders the verdict. If this is true where the substitution has been made in the manner provided by Penal Code, section 1089 it must be true where it has been made in an irregular manner. The same number of jurors sworn to try the case in the same way are involved in either instance." (People v. Burns, supra, 84 Cal.App.2d at p. 32, 189 P.2d at p. 876.)

In People v. Hess, supra, 107 Cal.App.2d 407, 237 P.2d 568, the initial 12 jurors were impaneled and sworn and the judge announced there would be no alternates. A four-day recess occurred. When court reconvened one juror was excused because of illness under the provisions of Penal Code section 1089. The court then changed its order and impaneled two alternates, substituting one for the excused juror. Thereafter the court denied defendant's motion to dismiss predicated upon double jeopardy. Citing People v. Burns, supra, the court stated that the selection and substitution of the alternate juror being substantially in compliance with the provisions of Penal Code section 1089, ". . . it necessarily follows that jeopardy did not attach until after the alternate jurors were sworn and therefore, appellants faced but one jury." (People v. Hess, supra, 107 Cal.App.2d at p. 426, 237 P.2d at p. 579; see People v. Hohensee (1967) 251 Cal.App.2d 193, 59 Cal.Rptr. 234.)

More recently in People v. Davis (1972) 27 Cal.App.3d 115, 103 Cal.Rptr. 494, the court cited Burns and Hess with approval but qualified those holdings, stating:

"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. (Citation.) An unwarranted discharge of the jury thereafter gives rise to the defense of former jeopardy and a discharge is unwarranted unless the defendant consented thereto or legal necessity required it. (Citations.)" (People v. Davis, supra, 27 Cal.App.3d at p. 119, 103 Cal.Rptr. at p. 497.)

Applying these principles to the case at bench, the court could have replaced Juror [147 Cal.Rptr. 336] McQuown from alternates thereafter selected and jeopardy would not have attached.

Under the holding in Burns, Hess and Davis it would appear this procedure could have been followed whether or not legal necessity existed for the excusal of Juror McQuown. It is noted, however, that the judge's determination of legal necessity to excuse Juror McQuown without a hearing violated the procedural requirement set forth in People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537, People v. Hamilton (1963) 60 Cal.2d 105, 124-127, 32 Cal.Rptr. 4, 383 P.2d 412 (disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33), and People v. Manriquez (1976) 59 Cal.App.3d 426, 432, 130 Cal.Rptr. 585. Without a hearing and a record thereof it is impossible to determine whether the death of the juror's brother rendered the juror unable to perform her duty, thus justifying her discharge under the doctrine of strict legal necessity. (Pen.Code, §§ 1123, 1089; People v. Compton, supra, 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537; People v. Davis, supra, 27 Cal.App.3d 115, 119-120, 103 Cal.Rptr. 494; see People v. Collins (1976) 17 Cal.3d 687, 696, 131 Cal.Rptr. 782, 552 P.2d 742, cert. den., 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796.)

However, the court's action in permitting further peremptory challenges to the jurors who had been sworn as a panel of 12 was fatal. That opening up amounted to an unswearing or discharge of the original panel which was not consented to and for which no legal necessity existed. Since the panel had been sworn the peremptory challenges were not authorized by Penal Code section 1068. (People v. Young (1929) 100 Cal.App. 18, 20, 279 P. 824.) Following the holding in People v. Davis, supra, when there is an unwarranted discharge of the jury following the impanelment and swearing of the first 12 jurors but before alternates are impaneled and sworn, jeopardy attaches at the time the first 12 jurors are sworn. Accordingly, petitioners were subjected to being put twice in jeopardy when the trial thereafter proceeded.

" § 1068. Time for taking challenge

The writs should issue as prayed.

"Whenever, in the opinion of a judge of a superior or of a municipal court about to try a defendant against whom has been filed any indictment or information or complaint, the trial is likely to be a protracted one, the court may cause an entry to that effect to be made in the minutes of the court, and thereupon, immediately after the jury is impaneled and sworn, the court may direct the calling of one or more additional jurors, in its discretion, to be known as 'alternate jurors.'

"Such alternate jurors must be drawn from the same source, and in the same manner, and have the same qualifications as the jurors already sworn, and be subject to the same examination and challenges; provided, that the prosecution and the defendant shall each be entitled to as many peremptory challenges to such alternate jurors as there are alternate jurors called. When two or more defendants are tried jointly each defendant shall be entitled to as many peremptory challenges to such alternate jurors as there are alternate jurors called. The prosecution shall be entitled to additional peremptory challenges equal to the number of all the additional separate challenges allowed the defendant or defendants to such alternate jurors.

"Such alternate jurors shall be seated so as to have equal power and facilities for seeing and hearing the proceedings in the case, and shall take the same oath as the jurors already selected, and must attend at all times upon the trial of the cause in company with the other jurors; and for a failure so to do are liable to be punished for contempt.

"They shall obey the orders of and be bound by the admonition of the court, upon each adjournment of the court; but if the regular jurors are ordered to be kept in the custody of the sheriff or marshal during the trial of the cause, such alternate jurors shall also be kept in confinement with the other jurors; and upon final submission of the case to the jury such alternate jurors shall be kept in the custody of the sheriff or marshal and shall not be discharged until the original jurors are discharged, except as hereinafter provided.

"If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors."

(See also Pen.Code, § 1123.)

Further, because this cause is otherwise disposed of it need not be determined whether the actual procedure followed by the court satisfied Hess, Burns and Davis. The court replaced Juror McQuown directly without following the indirect route of impaneling another juror as an alternate and then transferring the juror to the regular [147 Cal.Rptr. 336] panel. On the face of the matter it would appear that the court should be able to do directly that which it could accomplish indirectly.

"CHALLENGE, WHEN TAKEN. It must be taken when the juror appears, and before he is sworn to try the cause; but the Court may for cause permit it to be taken after the juror is sworn, and before the jury is completed." (50A West's Ann.Pen.Code (1970 ed.) § 1068, p. 354.)

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