Stanley v. Superior Court

[269]Opinion

CROSKEY, J. In Curry v. Superior Court (1970) 2 Cal.3d 707, 713 [87 Cal.Rptr. 361, 470 P.2d 345] (Curry), our Supreme Court held that “mere silence” in the face of the proposed discharge of a jury does not constitute consent to the dismissal of the jury, and the subsequent mistrial, so as to defeat a defense assertion of double jeopardy. In this case, defense counsel participated in discussions which led the trial court to believe that counsel had consented to the procedure which ultimately resulted in the dismissal of the jury, prior to opening statements. When defendant subsequently moved for dismissal, asserting double jeopardy, the trial court held that defense counsel’s conduct constituted implied consent, and denied the motion. We conclude that the record supports the trial court’s conclusion; Curry has no application when counsel’s conduct goes beyond “mere silence,” and his words and actions reasonably lead the court to believe he consents. We therefore will deny defendant’s petition for a writ of prohibition.

Very shortly after the jury and four alternates were sworn in a double-murder case, a number of jurors asserted reasons why they needed to be excused from service. One juror revealed a previously undisclosed bias, and was dismissed. An alternate juror revealed a previously undisclosed childcare obligation, and was dismissed at the request of defendant. Another juror’s fiancée had broken her ankle and required the juror’s constant attention. The record does not reflect whether this juror was actually dismissed, but it appears that the trial court and counsel assumed that he had been excused. A fourth juror asserted that he had contracted contagious conjunctivitis (pinkeye), and was under doctor’s orders to stay home for two days. The trial court posited the question as to whether it should wait for this juror to get well, and a discussion was held with counsel. Both the prosecutor and the trial court believed that the result of the conversation was an agreement that the trial would not proceed unless there was at least one alternate. As a single alternate would be preserved if the trial were continued in order to retain the juror with pinkeye, the trial court proposed to counsel that it would ask the remaining jurors if they all would still be able to serve if the commencement of the trial were delayed for two days. The trial court expressed the view that if any other jurors asserted an inability to serve if the trial were continued, the court would grant a mistrial and dismiss the jury. Hearing no objection, the trial court proceeded with that course of action. A fifth juror then expressed concern, stating that he had “had a heart attack.” The trial court held another conference with counsel and, relying on what it believed to be the agreement it had previously reached with counsel, and hearing no objection, dismissed the jury and declared a mistrial. A new trial date was set.