Hernandez

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 [ 101 S.Ct. 426, 434 , 66 L.Ed.2d 328 ] (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…

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 Constitution. 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 [ 101 S.Ct. 426 , 66 L.Ed.2d 328 ] 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. 6.) 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,…

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 , 101 S.Ct. 426 , 66 L.Ed.2d 328 ( Di-Francesco ).) 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…