IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 2/4 B145238
Los Angeles County
Defendant and Appellant.
Super. Ct. No. YA042302
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
(DiFrancesco).) 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.
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, 484-486; People v. Hamilton (1963) 60
Cal.2d 105, 128, overruled on other grounds in People v. Morse (1964) 60 Cal.2d
631.) 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; Paulson v. Superior Court (1962) 58 Cal.2d 1, 9; see Crist v. Bretz
(1978) 437 U.S. 28, 34, fn. 10.) 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; see
Curry, supra, at p. 717.)
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;
People v. Hess (1951) 107 Cal.App.2d 407, 425-426), 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). 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 (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.)
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), assuring a fair and
impartial jury rather than one selected by the prosecution (see Young, supra, 100
Cal.App. at p. 23), and avoiding trials that unduly favor the prosecution (Larios v.
Superior Court (1979) 24 Cal.3d 324, 329). 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.”
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; United
States v. Scott (1978) 437 U.S. 82, 90-91; Burks v. United States (1978) 437 U.S.
1, 14-15; United States v. Ball (1896) 163 U.S. 662, 672; People v. Hatch (2000)
22 Cal.4th 260, 271-274; People v. Superior Court (Marks) (1991) 1 Cal.4th 56,
72, 77-78; People v. Lo Cigno (1965) 237 Cal.App.2d 470, 472; see 1 Wharton,
Criminal Law (15th ed. 1993) § 64, pp. 485-487; 1 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Defenses, § 178, pp. 534-535; but see United States v.
Wallach (2d Cir. 1992) 979 F.2d 912 [double jeopardy may bar retrial if
prosecutor engages in deliberate impropriety designed to avoid acquittal].)
As we stated recently in People v. Hatch, supra, 22 Cal.4th at page 274,
quoting from Tibbs v. Florida (1982) 457 U.S. 31, 42-43, if sufficient evidence
exists to support a conviction, “retrial simply ‘affords the defendant a second
opportunity to seek a favorable judgment’ and does not violate the constitutional
prohibition against double jeopardy.”
The court in People v. Burgess (1988) 206 Cal.App.3d 762 (Burgess),
applied the foregoing general rule in a case quite similar to ours. In Burgess, the
trial court had erred in allowing the prosecutor, over the defendant’s objection,
and before opening statements or receipt of evidence, to exercise a peremptory
challenge of an empanelled and sworn juror, replacing her with an alternate juror.
(See former Pen. Code, § 1068.) Faced with defendant’s reliance on Young,
supra, 100 Cal.App. 18, the Burgess court reexamined the various policies
underlying the double jeopardy clauses and, unlike Young, found that the
defendant had suffered “no meaningful deprivation or violation of those
protections or policies.” (Burgess, supra, at p. 768.) Burgess refused to hold that
the erroneous exclusion of a single juror was the equivalent of a mistrial. (Ibid.;
see also People v. Hohensee (1967) 251 Cal.App.2d 193, 203-204 [improper
replacement of seated juror]; People v. Burns (1948) 84 Cal.App.2d 18, 32-33
The Burgess court distinguished Young, supra, 100 Cal.App. 18, as
involving selecting a new juror from the venire after jeopardy had attached, rather
than picking an alternate from the previously selected panel. (Burgess, supra, 206
Cal.App.3d at p. 768.) The court noted that, in People v. Hamilton, supra, 60
Cal.2d at page 128, involving wrongful discharge of a juror during the penalty
phase of a capital case, we reversed the judgment but remanded for new trial.
(Burgess, supra, 206 Cal.App.3d at p. 769.)
In addition to Burgess, we find instructive the high court’s decision in
DiFrancesco, supra, 449 U.S. 117. The issue there was whether a federal statute
(18 U.S.C.A. § 3576) allowing the government to appeal from a “dangerous
special offender” finding and consequent lengthier sentence violated double
jeopardy principles. In rejecting the argument, the court first reviewed the various
policies and protections underlying, or afforded by, double jeopardy principles.
These include (1) protecting the defendant from being subjected to the
embarrassment, expense, ordeal, and anxiety of repeated trials, (2) preserving the
finality of judgments, (3) precluding the government from retrying the defendant
armed with new evidence and knowledge of defense tactics, (4) recognizing the
defendant’s right to have trial completed by a particular tribunal, and (5)
precluding multiple punishment for the same offense. (DiFrancesco, supra, 449
U.S. at pp. 127-129; see also Green v. United States, supra, 355 U.S. at pp. 187-
The DiFrancesco court, in the course of upholding the federal appeals
statute, reiterated the general rule that, absent insufficiency of evidence, double
jeopardy does not bar retrial following reversal of a conviction on appeal.
(DiFrancesco, supra, 449 U.S. at p. 131.) The court, quoting from an earlier case,
observed that it would be a “ ‘high price indeed for society to pay’ ” if reversible
trial errors resulted in immunity from punishment. (Ibid., quoting United States v.
Tateo (1964) 377 U.S. 463, 466.)
The Court of Appeal in the present case stressed the policy, mentioned in
DiFrancesco, of assuring that trial is completed by a “particular tribunal” or
“chosen jury.” (See Crist v. Bretz, supra, 437 U.S. at p. 35; Downum v. United
States (1963) 372 U.S. 734 ,736; Wade v. Hunter (1949) 336 U.S. 684, 689; Stone
v. Superior Court (1982) 31 Cal.3d 503, 516, fn. 7, and cases cited.) But these
cases do no more than determine that jeopardy attaches once a jury and alternates
are chosen (see In re Mendes, supra, 23 Cal.3d at pp. 853-854), and that granting
an unnecessary mistrial bars retrial (see Stone v. Superior Court, supra, 31 Cal.3d
at p. 516). They do not stand for the proposition that defendant becomes immune
from further prosecution merely because one particular juror is improperly
discharged, an alternate substituted, and an actual verdict duly entered. (See also
People v. McDermott (2002) 28 Cal.4th 946, 983-984 [reaffirming Mendes’s
conclusion that jeopardy does not attach until alternate jurors are selected and
As the high court stated in Crist, “The reason for holding that jeopardy
attaches when the jury is empanelled and sworn lies in the need to protect the
interest of an accused in retaining a chosen jury. That interest was described in
Wade v. Hunter, supra, as a defendant’s ‘valued right to have his trial completed
by a particular tribunal.’ 336 U.S., at 689. It is an interest with roots deep in the
historic development of trial by jury in the Anglo-American system of criminal
justice. Throughout that history there ran a strong tradition that once banded
together a jury should not be discharged until it had completed its solemn task of
announcing a verdict.” (Crist v. Brest, supra, 437 U.S. at pp. 35-36, italics added,
Here, defendant’s chosen jury was not discharged but instead, with the
substitution of a preselected alternate juror, remained intact until a verdict was
rendered. In People v. Burns, supra, 84 Cal.App.2d 18, the court concluded that
an alternate juror, even if improperly seated, is part of the same jury chosen by the
defendant, so that he is not subjected to two different juries and double jeopardy is
inapplicable. As stated in Burns, “Either the substitution of an alternate for a
regular juror destroys the unity of the jury or it does not. If it does not destroy the
unity of the jury as is settled . . . , then the substitution of an alternate for a regular
juror in an unauthorized manner does not place the defendant twice in jeopardy
but is merely an error of law . . . .” (People v. Burns, supra, 84 Cal.App.2d at p.
Cases from other jurisdictions uniformly hold that the discharge of an
individual juror and substitution of an alternate does not terminate jeopardy. (See
United States v. Shinault (10th Cir. 1998) 147 F.3d 1266, 1273-1276; United
States v. Isom (11th Cir. 1996) 88 F.3d 920, 923-924; United States v. Trigg (9th
Cir. 1993) 988 F.2d 1008, 1009-1010; Com. v. Johnson (Mass. 1998) 689 N.E.2d
1327, 1333-1334; State v. Cook (Md. 1995) 659 A.2d 1313, 1321-1322; People v.
Campbell (Ill.App.Ct. 1984) 467 N.E.2d 1112, 1121; State v. Haar (N.M.Ct.App.
1990) 797 P.2d 306, 312-313; Worley v. State (Okla.Ct.App. 1953) 262 P.2d 483,
485-487; State v. Max (Tenn.Ct.App. 1986) 714 S.W.2d 289, 293-294.) Even an
improper discharge does not invoke double jeopardy and bar retrial. (See State v.
Santana (Idaho Ct.App. 2000) 14 P.3d 378, 383-384; Cantrell v. State (Ark. 1979)
577 S.W.2d 605, 607.)
The Court of Appeal likewise focused on “the importance of avoiding trials
in which undue advantage has been placed in the hands of the prosecution (Larios
v. Superior Court, supra, 24 Cal.3d at p. 329; Downum v. United States, supra,
372 U.S. at p. 736).” (Italics added.) Yet here, we cannot say that discharging
Juror No. 8 gave the prosecutor any concrete advantage whatever. As the Court of
Appeal opinion recites, “The record does not reflect that Juror No. 8 was biased in
favor of the defense or prejudiced against the People.” Instead, the juror merely
indicated 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. . . . The reason for requesting the
conference was ‘to clear [her] mind.’ ” Thereafter, the juror confirmed that she
was nonetheless “committed to being fair,” and had formed no opinion as to the
outcome of the case. The record contains nothing casting doubt on those
The Court of Appeal’s conclusion that defendant was prejudiced by the
juror’s exclusion was based solely on “the loss of a juror who seemed inclined to
give serious consideration to the testimony of the defense witnesses,” rather than
upon a finding of any undue prosecutorial advantage that might justify invoking
double jeopardy principles to bar retrial.
The Court of Appeal also expressed concern that if the sole consequence of
wrongfully excluding a juror sympathetic to the defense were merely reversal and
retrial without the excluded juror, “we fear such discharges could become
routine.” This concern seems both unrealistic and unfair, overlooking the fact that
such a discharge would require the concurrence of the trial judge, who ordinarily
would not welcome routine reversals of his judgments. True, a prosecutor might
risk a reversal and retrial in order to rid the jury of an obviously biased juror, yet
any such obvious bias would justify an exclusion for cause. Similarly, although a
trial court might routinely excuse a biased juror, excluding “borderline” jurors
such as Juror No. 8 will be far less common, especially after the clarifying
guidelines set forth in People v. Cleveland, supra, 25 Cal.4th at pages 484-486.
We think that error in discharging a juror should be treated no differently
from any other trial error leading to reversal on appeal, such as prejudicial
instructional or evidentiary error or ordinary prosecutorial misconduct. Applying
the Court of Appeal’s logic, all such errors theoretically could become “routine” if
the only consequence were a reversal of the judgment yet, despite that speculative
possibility, the law is clear that, as a general rule, errors other than insufficiency of
evidence do not preclude retrial following reversal of conviction. In short, we do
not share the Court of Appeal’s concern that, unless retrial is precluded, improper
exclusion of jurors will become commonplace.
Additionally, adopting the Court of Appeal’s double jeopardy analysis
could have unfortunate consequences. The high court has predicted that
appellate courts might be less inclined to scrutinize the record for prejudicial error
in criminal appeals if they knew that reversal for ordinary trial errors would bar
retrial. (United States v. Tateo, supra, 377 U.S. at p. 466.) Moreover, despite a
showing of a juror’s failure to deliberate or other possible misconduct, trial courts
might prefer to await jury deadlock, mistrial and retrial, rather than to remove the
juror and risk being reversed on appeal.
We conclude that double jeopardy principles do not bar retrial in this
case. The judgment of the Court of Appeal is reversed and the cause remanded
to that court for further proceedings consistent with our opinion. We disapprove
People v. Young, supra, 100 Cal.App. 18, to the extent it is inconsistent with this
CONCURRING OPINION BY WERDEGAR, J.
I concur fully in the majority’s conclusion: The midtrial dismissal of a
single juror and replacement with a sworn alternate juror, though improper on the
facts of this case, was not the functional equivalent of granting an unnecessary
mistrial over defendant’s objection and did not terminate jeopardy; thus,
defendant’s retrial is not precluded by the double jeopardy clauses of either the
state or federal Constitutions. I write separately to distance myself from a portion
of the majority’s analysis and to emphasize my understanding of the narrowness
of today’s decision.
The majority begins its analysis by citing United States v. DiFrancesco
(1980) 449 U.S. 117 and the established rule that double jeopardy principles
generally do not prohibit retrial after an appellate court reverses a criminal
defendant’s conviction. (Maj. opn., ante, at p. 5.) The majority repeats this point
later in the analysis. (Id. at p. 7.) I find the majority’s reliance on DiFrancesco
misleading, for defendant does not claim his retrial would violate his
constitutional rights simply because his first conviction was reversed on appeal.
Instead, he claims that jeopardy, which indisputably had attached at his first trial
when the jurors and alternates were sworn (In re Mendes (1979) 23 Cal.3d 847,
850), was terminated when the trial court erroneously dismissed Juror No. 8, and
that a retrial would place him in jeopardy for a second time in violation of the
double jeopardy clauses of the state and federal Constitutions. Because the
relevant triggering event in this case is the dismissal of the juror, not the reversal
of defendant’s conviction on appeal, the majority’s focus on the latter obscures the
true issue. Moreover, because the rule generally (though not always) permitting
retrial of an accused following appellate reversal of the judgment in a first trial is
so very well established (DiFrancesco, supra, 449 U.S. at p. 131; Green v. United
States (1957) 355 U.S. 184, 189; People v. Henderson (1963) 60 Cal.2d 482, 495;
People v. Tong (1909) 155 Cal. 579, 584; id. at p. 585 (conc. opn. of Sloss, J.);
1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 178, pp. 534-
535), the majority’s insistence on this point suggests a degree of precedential
support for its conclusion that does not exist.
Nevertheless, I agree that on the particular facts of this case, a retrial will
not violate defendant’s constitutional rights. Retrial would of course be prohibited
if defendant’s entire chosen jury of 12 persons had been improperly discharged
against his wishes. Does the same rule apply if only a single juror is improperly
discharged? We fortunately need not make a global pronouncement on that
difficult question, for there are aspects of this case that simplify the issue for us
and distinguish it from previous cases that posed similar double jeopardy
problems. First, as the majority observes, “defendant’s chosen jury was not
discharged but instead, with the substitution of a preselected alternate juror,
remained intact until a verdict was rendered.” (Maj. opn., ante, at p. 8.) Unlike in
People v. Young (1929) 100 Cal.App. 18, where an empaneled juror was
discharged and replaced with someone called from the venire (id. at p. 19), Juror
No. 8 in the instant case was replaced with a sworn alternate. This alternate,
chosen during the same voir dire process by which the other jurors were selected,
and sworn in at the same time, was already part of the jury. Hence, replacement
with this alternate did not compromise the integrity of the jury. I thus agree with
the court in People v. Burns (1948) 84 Cal.App.2d 18, 31, that replacement of a
discharged juror with a previously sworn alternate rather than a new juror is a
significant factor in determining whether jeopardy has been terminated.
Second, unlike in People v. Burgess (1988) 206 Cal.App.3d 762, voir dire
was not reopened, and the parties were not allowed to exercise additional
peremptory challenges. Even in circumstances where but a single juror is
replaced, reopening voir dire and permitting a party to exercise additional
peremptory challenges, in addition to violating Code of Civil Procedure section
226, subdivision (a), may also compromise a defendant’s constitutionally
protected right to a chosen jury. (See Crist v. Bretz (1978) 437 U.S. 28, 35-36
[discussing the importance to a defendant of retaining his or her chosen jury].)
That the trial court below did not reopen voir dire is an important facet of the
problem before us.1
Finally, contrary to the view of the Court of Appeal below, this was not a
case where the trial court was “tinker[ing] with the makeup of the jury” so as to
prejudice one side, or to ensure a particular outcome. To be sure, the trial court
opined that it did not believe Juror No. 8 could “give a fair trial to the People.”
But the overall record indicates the court was concerned about the juror’s
“psychological health,” noting her demeanor was “very tortured.” I thus agree
with the appellate court and the majority that “[t]he record does not reflect that
Juror No. 8 was biased in favor of the defense or prejudiced against the People.”
(Maj. opn., ante, at p. 9.)
Although the trial court invited the prosecutor to make a “challenge for
cause,” I agree with the Court of Appeal below that we should “presume the
intention was to invoke Penal Code section 1089 . . . which . . . permits discharge
of a juror for good cause after he or she has been empaneled and sworn.”
All of these factors together persuade me the majority is correct in
concluding that retrial of this defendant will not violate his rights under the state
and federal double jeopardy clauses. Were any of the above factors missing—for
example, had the trial court dismissed more than a single juror, had it not replaced
the discharged juror with a sworn alternate, had the court reopened voir dire and
permitted additional peremptory challenges, or had the court’s purpose in
discharging the juror been to influence the verdict—this case might require a
different outcome. Although affording a criminal defendant what is, in essence,
immunity from future prosecution of his crimes as a result of a trial court’s legal
error exacts a steep price from society, both our state and federal Constitutions
may require that price be paid in some cases. The answer awaits another day. The
constellation of factors present in this case convinces me this is not such a case.
With that understanding of the majority’s opinion, I concur.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Hernandez
Date Filed: March 20, 2003
County: Los Angeles
Judge: Mark S. Arnold
Attorneys for Appellant:Nancy J. King, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent: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.
Counsel who argued in Supreme Court (not intended for publication with opinion):Nancy J. King
1400 Sixth Avenue, Suite 210C
San Diego, CA 92101
Richard T. Breen
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Plaintiff and Respondent)|
Represented by Richard Todd Breen
300 So. Spring Street Fifth Floor
300 So. Spring Street Fifth Floor
Los Angeles, CA
|2||Hernandez, Manuel (Defendant and Appellant)|
Represented by Nancy J. King
Attorney At Law
1400 Sixth Avenue, Suite 210C
San Diego, CA
|Mar 20 2003||Opinion: Reversed|
|Mar 15 2002||Petition for review filed|
counsel for resp (People)
|Mar 19 2002||Record requested|
|Mar 20 2002||Received Court of Appeal record|
|Apr 3 2002||Answer to petition for review filed|
with permission by counsel for appellant (M. Hernandez)
|Apr 29 2002||Time extended to grant or deny review|
to and including June 13, 2002.
|May 15 2002||Petition for Review Granted (criminal case)|
Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
|Jun 10 2002||Request for extension of time filed|
to file opening brief/merits A.G. for The People
|Jun 14 2002||Extension of time granted|
Respondent's time to serve and file the opening brief on the merits is extended to and including July 15, 2002.
|Jun 14 2002||Counsel appointment order filed|
Nancy J. King is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
|Jun 26 2002||Issues ordered limited|
Briefing and argument in this case shall be limited to the question whether, assuming prejudicial error occurred, retrial is barred by principles of double jeopardy. Brown, J., was absent and did not participate.
|Jul 8 2002||Request for extension of time filed|
resp request to August 14, 2002 to file opening brief on the merits. faxed to sf
|Jul 12 2002||Extension of time granted|
Respondent's time to serve and file the opening brief on the merits is extended to and including August 14, 2002. NO FURTHER EXTENSIONS ARE CONTEMPLATED.
|Aug 12 2002||Opening brief on the merits filed|
|Sep 6 2002||Request for extension of time filed|
by counsel for appellant requesting extension to October 11, 2002 to file the answer brief on the merits.
|Sep 10 2002||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 11, 2002. No further extensions are contemplated.
|Oct 4 2002||Request for extension of time filed|
by counsel for appellant (M. Hernandez) to November 12, 2002 to file the answer brief on the merits. (2nd request).
|Oct 16 2002||Extension of time granted|
Appellant's time to serve and file the answer brief is extended to and including November 12, 2002. No further extensions will be granted.
|Nov 13 2002||Answer brief on the merits filed|
by counsel for appellant (M. Hernandez) (40k)
|Nov 26 2002||Request for extension of time filed|
to file reply brief/merits Deputy A.G.
|Dec 6 2002||Extension of time granted|
Respondent's time to serve and file the reply brief on the merits is extended to and including January 2, 2003. No further extensions are contemplated.
|Dec 18 2002||Compensation awarded counsel|
|Dec 27 2002||Reply brief filed (case fully briefed)|
by respondent's Attorney General
|Jan 7 2003||Case ordered on calendar|
2-4-03, 9am, Sacramento
|Feb 4 2003||Cause argued and submitted|
|Mar 20 2003||Opinion filed: Judgment reversed|
and remanded to the Court of Appeal for further proceedings consistent with this opinion. Majority Opinion by Chin, J. ---------joined by George, C.J., Kennard, Baxter, Brown, Moreno, JJ. Concurring Opinion by Werdegar, J.
|Apr 22 2003||Remittitur issued (criminal case)|
|Apr 23 2003||Returned record|
|Apr 28 2003||Received:|
receipt for remittitur from CA 2/4
|Jun 13 2003||Compensation awarded counsel|
|Aug 12 2002||Opening brief on the merits filed|
|Nov 13 2002||Answer brief on the merits filed|
|Dec 27 2002||Reply brief filed (case fully briefed)|