Supreme Court of California Justia
Docket No. S126550
People v. Cottle

Filed 7/27/06


Plaintiff and Respondent,
) Ct.App.
Defendant and Appellant.
Super. Ct. Nos. 02F03971 &

Here we consider whether a trial court has discretion to reopen jury
selection after the trial jury has been impaneled, but before alternate jurors are
sworn. We hold that the trial court lacks discretion to do so under the Trial Jury
Selection and Management Act (Code Civ. Proc., § 190 et seq., effective January
1, 1989)1 (Trial Jury Selection Act or Act).
Defendant Kevin Lamar Cottle was charged with leaving the scene of an
accident and four counts of assault with a motor vehicle. Two of the latter counts
carried enhancement allegations that he personally inflicted great bodily injury.

Unless otherwise indicated all further statutory references are to the Code
of Civil Procedure.


After both sides consecutively passed their peremptory challenges, 12 trial
jurors were sworn. During the selection of alternate jurors, sworn Juror No. 12
asked to address the court about some reservations, and the following exchange
“THE COURT: Yes sir, [Juror No. 12] why don’t you have a seat. There
is something you wanted to bring to the attention of the court?
Yes, your Honor. Physically hurting people, anything like injury,
right? Kind of mentally fits me. My problem is in effort [sic] in civil case, I
would be more comfortable. In a criminal case, my feeling is and I would —
justice be served with this jury. I don’t want to go with the feeling that, okay, we
didn’t do the right thing in this court. So that’s, that’s my mental block. But now
I can work around it, I’ll do my best. But I just thought I just let you know.
Right. I am not sure I understand what, what you are telling me.
Are you saying that —
“A. Aftermath, my feeling would be just whatever verdict we come with
did anything go wrong in this case, right? I am responsible for this. Kind of
mental problem.
Is this some hesitancy you have about, for example, voting guilty
because you feel that would be uniquely burdensome to you?
Well, if the evidence here was sufficient to prove beyond a
reasonable doubt that Mr. Cottle engaged in the conduct that is alleged here
according to the law, can you vote for a guilty verdict?
Yeah, try to.
Try to is a difficult word for me.
Your obligation as a juror —
— would be to vote for that verdict which you believe is correct
consistent with the facts as you determine them and the law and you cannot, for
example, let sympathy for Mr. Cottle affect that decision. It has to be based on the
evidence and the law and not on some sense of sympathy. All right?
Can you do that?
Yeah. But again my mind and I feel more comfortable in a civil case
than a criminal case.
Well, I do both and sometimes I feel more comfortable with civil
cases than criminal cases too, but they are there and they need to be tried and there
is a right to jury trial.
“Now I want you to just reflect on this a second. Can you truly be fair and
impartial in this case both to Mr. Cottle and to the People?
Defense counsel questioned Juror No. 12 as follows:
[Juror No. 12], is there any religious component to your judging
facts and criminal—
Not about hurting people is a bad thing. My mental, anything
related to injury, inflicting injury, I don’t like it.
Would you let your opinion be swayed by sympathy for the victims
in this case?

Could you — could you keep an open mind until the end to
determine whether or not there is criminal responsibility for the injuries to the
Okay. Do you understand people get hurt all the time in auto
accidents. They are not criminally responsible for it, they are just accidents.
Sometimes people aren’t responsible for hurting some other people?
It doesn’t do to them to put restrictions back again, does it? Do you
Yeah, I got it.
Do you understand what I am saying? So you can’t favor Mr. Cottle
or the victim, you have to judge it on the facts, the testimony?
Put that together with the law and come up with a decision, can you
do that?
Yeah, I can do that.
All right. Let me ask you again. Is your, is your vote when you are
in the jury room going to be based or could it be influenced by sympathy for the
victims who are hurt in this?
Possibility again. Without looking at the data, it is going to be hard.
I am not sure.
“But I will do my best to analyze the data.”

In response to the prosecutor’s questions, Juror No. 12 said he understood
that he was not “to consider sympathy, passion, punishment, [or] any
consequences for anyone.” Upon additional questioning from the trial judge, he
assured the court he understood that he had to put aside his feelings of sympathy
and that he would do so.
The court denied a defense motion to dismiss Juror No. 12 for cause,
stating: “There is not enough here for cause. His final assurance to the court was,
I thought his demeanor was sincere. He was knowledgeable of the law at that
time, indicated he could comply with the law. He was wobbly as to both sides at
one time or another during the voir dire, but I believe the final line is that he is [a]
fair and impartial juror. There is not a basis for cause.” Defendant then moved to
reopen jury selection so he could use an unused peremptory challenge to dismiss
Juror No. 12. The trial court denied the motion, observing that because the 12
jurors had been sworn, defendant was not entitled to reopen jury selection to use a
peremptory challenge.
The jury convicted defendant on four counts of assault and found true the
special allegations. Defendant was sentenced to 10 years in prison.
The Court of Appeal reversed, relying on People v. Armendariz (1984) 37
Cal.3d 573 (Armendariz), and concluding that the trial court should have permitted
the defense to reopen jury selection.
In Armendariz, the jury panel had been sworn. After five alternate jurors
had been selected but not sworn, two trial jurors were discharged for cause.
During the main jury selection, defendant had exercised only four of his 26
peremptory challenges. After the two trial jurors were discharged, defendant
asked to use two of his remaining challenges, in addition to the five challenges
allowed for alternate jurors. The trial court denied the request, relying on Penal
Code section 1089, which then 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.’ ” (Armendariz, supra, 37 Cal.3d at pp. 578-579.)
After defense counsel exercised five peremptory challenges, defendant moved to
reopen selection of the jury so he could exercise his 22 unused challenges. (Id. at
p. 578.) The trial court denied the request.
We reversed, relying heavily on former Penal Code section 1068, which
provided that a challenge to a juror “ ‘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.’ ” (Armendariz,
supra, 37 Cal.3d at p. 581, quoting former Penal Code section 1068, enacted in
1872 and repealed by Stats. 1988, ch., 1245 § 28, p. 4155.) We concluded,
“ ‘[t]his section clearly contemplates that there may be an appreciable interval
between the moment when a juror is sworn and the point at which the jury is
deemed to be complete. It has long been established that a peremptory challenge
may be made to a juror during this interlude if there is good cause for the failure of
an earlier exercise of the challenge.’ [Citation.]” (Armendariz, supra, 37 Cal.3d
at p. 581, quoting In re Mendes (1979) 23 Cal.3d 847, 855.)2 Thus, we held that
the trial court erred in failing to reopen jury selection and permitting the defendant
to exercise his remaining peremptory challenges. (Armendariz, supra, 37 Cal.3d
at p. 581.)

In re Mendes was also based on former Penal Code section 1068. (In re
Mendes, supra, 23 Cal.3d at p. 855 [“We find significance in the language of
[former Penal Code] section 1068 which provides that a challenge to a juror ‘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’ ”].)

The Attorney General contends reliance on Armendariz, supra, 37 Cal.3d
573, is misplaced because repeal of former Penal Code section 1068 eliminated a
trial court’s discretion to reopen jury selection after the trial jury has been sworn.
We agree.
In 1988, the Trial Jury Selection Act repealed former Penal Code section
1068.3 The Act constituted “an extensive revision of the law with respect to
juries, consolidating various provisions relative to juries in civil and criminal
causes, and revising provisions relative to the qualifications of trial jurors, . . . the
selection of jury panels, [] challenges to jurors, . . . thereby imposing new state-
mandated local programs . . . .” (Legis. Counsel’s Dig., Assem. Bill No. 2617
(1987-1988 Reg. Sess.).) It applies to both civil and criminal cases. (Code Civ.
Proc., § 192.) Here, we must construe the Act to determine whether Armendariz,
supra, 37 Cal.3d 573, retains its precedential force.
“In construing a statute, our task is to ascertain the intent of the Legislature
so as to effectuate the purpose of the enactment. [Citation.] We look first to the
words of the statute, which are the most reliable indications of the Legislature’s
intent. [Citation.] We construe the words of a statute in context, and harmonize
the various parts of an enactment by considering the provision at issue in the
context of the statutory framework as a whole. [Citations.]” (Cummins, Inc. v.
Superior Court (2005) 36 Cal.4th 478, 487.) In addition, “ ‘[w]here a statute, with
reference to one subject contains a given provision, the omission of such provision
from a similar statute concerning a related subject [in this case the same subject] is
significant to show that a different intention existed.’ [Citations.]” (People v.
Valentine (1946) 28 Cal.2d 121, 142.)

The Act became effective on January 1, 1989.

In repealing former Penal Code section 1068, the Legislature did not
replace it with a similar provision authorizing the reopening of jury selection after
the trial jury has been sworn. Instead, it added Code of Civil Procedure sections
226 and 231. Subdivision (a) of section 226 provides: “A challenge to an
individual juror may only be made before the jury is sworn.” (Italics added.)
Subdivision (d) of section 231 then explains: “Peremptory challenges shall be
taken or passed by the sides alternately, commencing with the plaintiff or people;
and each party shall be entitled to have the panel full before exercising any
peremptory challenge. When each side passes consecutively, the jury shall then
be sworn, unless the court, for good cause, shall otherwise order.” (Italics added.)
Here, both sides consecutively passed their peremptory challenges, and the
jury was sworn. (Code Civ. Proc., § 231, subd. (d).) At this point, by its terms,
section 226, subdivision (a) barred the court from reopening jury selection and
permitting further peremptory challenges. (See also People v. Hernandez (2003)
30 Cal.4th 1, 12 (conc. opn. of Werdegar, J.) [reopening voir dire and permitting a
party to exercise additional peremptory challenges violates Code of Civil
Procedure section 226, subdivision (a).]) Under the plain language of the
applicable statutes, the trial court could discharge Juror No. 12 only if there was
good cause for his removal. (Code Civ. Proc., §§ 233 & 234; Pen. Code, § 1089.)4
The Legislature has eliminated the language upon which Armendariz, supra, 37
Cal.3d 573, was based, thus superseding its precedential authority.

The Act also added Code of Civil Procedure sections 233 and 234 which
track the provisions of Penal Code section 1089. Penal Code section 1089
addresses the discharge of sworn jurors for “good cause” and the selection of
alternate jurors.

Defendant argues to the contrary, urging that when a trial is conducted with
alternate jurors, the impanelment of “the jury” is not complete until the alternates
have been selected and sworn. Defendant’s argument, however, is based on an
untenable interpretation of section 226, subdivision (a). When the relevant
language of section 226 is considered in light of other sections in the Act, it
becomes clear that the phrase “the jury is sworn” refers to the trial jury and not the
Section 193 defines three kinds of juries: (1) “[g]rand juries,” (2) “[t]rial
juries,” and (3) “[j]uries of inquest.” (Code Civ. Proc., § 193 subds. (a), (b) and
(c).) Code of Civil Procedure section 194, subdivision (o) defines “[t]rial jurors,”
as “those jurors sworn to try and determine by verdict a question of fact.”
Subdivision (p) of section 194 defines “[t]rial jury,” as “a body of persons selected
. . . and sworn to try and determine by verdict a question of fact.” Section 220
describes the number of jurors on a trial jury and states in pertinent part that, “A
trial jury shall consist of 12 persons . . . .” Read together, these statutes establish
that a trial jury consists of 12 jurors sworn to reach a verdict on questions of fact.
“[T]he jury is sworn” when those 12 trial jurors have been sworn. (Code Civ.
Proc., § 226, subd. (a).)
Sections 233 and 234 provide additional support for the conclusion that the
phrase “the jury is sworn” refers to the 12 trial jurors. Section 233 sets out the
procedures to follow if a juror is unable to perform his or her duty before a verdict
is reached: “If, before the jury has returned its verdict to the court, a juror
becomes sick or, upon other good cause shown to the court, is found to be unable
to perform his or her duty, the court may order the juror to be discharged.” (Italics
Section 234, in turn, states, “Whenever, in the opinion of a judge of a
superior court about to try a civil or criminal action or proceeding, the trial is
likely to be a protracted one, or upon stipulation of the parties, 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.’
“These alternate jurors shall be drawn from the same source, and in the
same manner, and have the same qualifications, as the jurors already sworn, and
shall be subject to the same examination and challenges. However, each side, or
each defendant, as provided in Section 231, shall be entitled to as many
peremptory challenges to the alternate jurors as there are alternate jurors called.
“The 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 shall, unless excused by the court, attend at all
times upon the trial of the cause in company with the other jurors, but shall not
participate in deliberation unless ordered by the court, and for a failure to do so
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, the
alternate jurors shall also be kept in confinement with the other jurors; and upon
final submission of the case to the jury, the alternate jurors shall be kept in the
custody of the sheriff or marshal who shall not suffer any communication to be
made to them except by order of the court, and shall not be discharged until the
original jurors are discharged, except as provided in this section.
“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 or her duty, or if a juror requests a discharge and
good cause appears therefor, the court may order the juror to be discharged and
draw the name of an alternate, who shall then take his or her place in the jury box,
and be subject to the same rules and regulations as though he or she has been
selected as one of the original jurors.” (Italics added.)
The italicized portions of the statutes make clear that alternate jurors are
treated distinctly under the code, thus supporting the conclusion that “the jury is
sworn” is a phrase relating only to the 12 trial jurors and not the alternates.
Among other important points of differentiation, alternate jurors do not participate
in deliberations unless ordered to do so. A court may make such an order only
after the discharge of a juror, upon a showing of good cause that the original juror
is unable to perform his or her duty. Those sitting only as alternate jurors never
determine questions of fact. They do not participate in the returning of a verdict
unless they join “the jury” in place of an original trial juror.
Thus, the Legislature set forth separate requirements for alternate jurors and
gave the court discretion whether to select alternates at all. This distinct treatment
demonstrates that a “jury” does not include alternate jurors. (See Code Civ. Proc.,
§§ 233 & 234; Pen. Code, § 1089.)
Adoption of defendant’s construction of “the jury is sworn” still would not
resurrect former Penal Code section 1068, or confer the right previously secured
under the Armendariz, supra, 37 Cal.3d 573 interpretation of that Code section.
Instead, we would be left with a scheme in which both sides could seek to exercise
unused peremptory challenges against members of the actual jury during selection
of the alternates, encouraging gamesmanship. For example, if a favorable juror
was selected as an alternate, a party would then try to challenge a member of the
jury so that the alternate could replace the juror. Nothing in the legislative history
suggests an intention to create such a scheme.
Defendant’s cited cases are inapposite. Although these cases considered
when the impanelment of a jury is complete, they did so in the context of
constitutional claims based on either double jeopardy5 or a challenge to the
improper use of peremptory challenges as discussed in Batson v. Kentucky (1986)
476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258.6 This case does not
involve those issues.7 “Peremptory challenges are intended to promote a fair and
impartial jury, but they are not a right of direct constitutional magnitude.” (People
v. Webster (1991) 54 Cal.3d 411, 438.) The selection of alternate jurors helps
guard against the risk of a mistrial should a juror become unable to serve.

See People v. Hernandez, supra, 30 Cal.4th at p. 5; In re Mendes, supra, 23
Cal.3d at p. 853; People v. Burgess (1988) 206 Cal.App.3d 762, 767; People v.
(1951) 104 Cal.App.2d 642, 680; People v. Burns (1948) 84 Cal.App.2d 18,
See People v. McDermott (2002) 28 Cal.4th 946, 970; People v. Rodriguez
(1996) 50 Cal.App.4th 1013, 1023; People v. Gore (1993) 18 Cal.App.4th 692,
Defendant also cites People v. Glenn (1990) 225 Cal.App.3d 618 (Glenn),
in support of his claim. In Glenn, the trial court followed the highly unusual
procedure of selecting 14 individuals from the juror pool and swearing all 14
before taking evidence. (Id. at p. 620.) The trial court intended to have all 14
observe the trial. When the presentation of evidence was complete, the clerk of
the court was to randomly select two names and those two individuals would be
designated as alternate jurors. The trial court’s rationale for following this
procedure “was to ensure that the two people who were ultimately designated as
alternates would pay as much attention to the trial as they would if they believed
they were regular jurors.” (Ibid.) Defendant challenged the trial court’s procedure
on constitutional and statutory grounds. Defendant’s constitutional claim was
based on article I, section 16 of the California Constitution, which provides for a
jury of 12 persons to serve in felony criminal trials. The Glenn court held that
because defendant received a jury of 12, there was no constitutional violation.
(Glenn, supra, at p. 620) Defendant’s statutory claim was based on Penal Code
section 1089. Defendant argued that the trial court abused its discretion when the
alternates were selected because they were “ ‘removed’ from the jury without
good cause.” (Glenn, supra, at p. 621.) Although it criticized the trial court’s
procedure and concluded that Penal Code section 1089 was technically violated,
the Glenn court upheld the defendant’s conviction because he suffered no
prejudice. (Glenn, supra, at pp. 620-623). Because Glenn was decided on facts
not present here, it is inapplicable.

Alternate jurors serve an important role, but they are not members of “the jury”
within the meaning of sections 226, subdivision (a) and 231, subdivision (d). The
Legislature was free to define when peremptory challenges may be exercised and
did so when it passed the provisions at issue here. (In re Lance W. (1985) 37
Cal.3d. 873, 891.)8
Therefore, we conclude that under the Act, the Legislature intended that a
trial jury be comprised of 12 jurors sworn by the court “to try and determine by
verdict . . . question[s] of fact” (§ 194, subd. (o)), regardless of whether alternate
jurors are to be called, selected, and sworn. Once a jury has been sworn, the court
lacks authority to reopen jury selection proceedings. (§ 226, subd. (a).)
This conclusion does not leave the court without recourse should a juror
become unable to serve. Code of Civil Procedure sections 233 and 234 and Penal
Code section 1089 provide for the removal of a juror upon a showing of good

Defendant’s reliance on our decision in People v. Griffin (2004) 33 Cal.4th
536, is also misplaced. In Griffin, the court twice denied defendant’s requests for
a mistrial. On appeal, defendant claimed that the court had a sua sponte duty to
reopen jury selection. Citing previous case law, we held the court had no such
duty and rejected the argument. (Id. at pp. 566-567.) Thus, Griffin did not reach
the issue raised in this case and does not help defendant.

We reverse the Court of Appeal’s judgment and remand this matter for
proceedings consistent with this opinion.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cottle

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 119 Cal.App.4th 745
Rehearing Granted


Opinion No.

Date Filed: July 27, 2006


County: Sacramento
Judge: Lloyd Connelly


Attorneys for Appellant:

Victor S. Haltom for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Matthew L. Cate, Janet E. Neely,
Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Victor S. Haltom
428 J Street, Suite 350
Sacramento, CA 95814
(916) 444-8663

Sean M. McCoy
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-9951

Opinion Information
Date:Docket Number:
Thu, 07/27/2006S126550

1Cottle, Kevin Lamar (Defendant and Appellant)
Represented by Victor S. Haltom
Attorney at Law
428 "J" Street, Suite 350
Sacramento, CA

2The People (Plaintiff and Respondent)
Represented by Sean Monroe Mccoy
Office of the Attorney General
1300 "I" Street, Suite 1101
P.O. Box 944255
Sacramento, CA

Jul 27 2006Opinion: Reversed

Jul 26 2004Petition for review filed
  By counsel for respondent {The People}.
Jul 26 2004Received Court of Appeal record
  One doghouse.
Sep 22 2004Petition for review granted (criminal case)
  George, C.J., was absent and did not participate. Votes: Brown, ACJ, Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Oct 14 2004Request for extension of time filed
  counsel (AG) for respondent (People) requests extension of time to November 22, 2004, to file the opening brief.
Oct 21 2004Extension of time granted
  Respondent's time to serve and file the opening brief is extended to and including November 22, 2004. No further extensions will be granted.
Nov 22 2004Opening brief on the merits filed
  by counsel for resp. (People)
Nov 23 2004Filed:
  by counsel for resp. Errata to Respondent's Opening Brief on the merits.
Dec 20 2004Request for extension of time filed
  counsel for appellant requests extension of time to January 24, 2005 to file the answer brief on the merits.
Dec 22 2004Extension of time granted
  Appellant's time to serve and file the answer brief on the merits is extended to and including January 24, 2005. No further extensions of time will be granted.
Jan 24 2005Answer brief on the merits filed
  by counsel for aplt.
Feb 10 2005Reply brief filed (case fully briefed)
  by counsel for resp. (People)
May 25 2005Received:
  additional volume of records, RT=3
May 2 2006Case ordered on calendar
  June 1, 2006, at 1:30 p.m., in San Francisco
Jun 1 2006Cause argued and submitted
Jul 27 2006Opinion filed: Judgment reversed
  and remand the matter for proceedings consistent with this opinion. Majority Opinion by Corrigan, J., ----- Joined by George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Aug 29 2006Remittitur issued (criminal case)
Aug 29 2006Note:
  records returned to CA/3
Sep 7 2006Received:
  receipt for remittitur from CA/3

Nov 22 2004Opening brief on the merits filed
Jan 24 2005Answer brief on the merits filed
Feb 10 2005Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website